1. The Miller Act of 1935, requiring contractors for public work
of the United States to furnish a payment bond for the protection
of persons supplying labor or materials, provides that a supplier
having contractual relationship not with the contractor furnishing
such bond, but with a subcontractor, "shall have a right of action
upon the said payment bond upon giving written notice to said
contractor. . . ." The Act further provides that "such notice shall
be served by mailing the same by registered mail. . . ."
Held, that a suit under the Act was maintainable although
the notice was sent by ordinary mail, and not by registered mail,
where it was otherwise sufficient and actually reached one of two
joint and several contractors. P.
311 U. S.
17.
2. With respect to the manner of giving the prescribed notice,
the Act should be liberally construed in aid of its remedial
purpose. P.
311 U. S.
18.
107 F.2d 925 affirmed.
Certiorari, 309 U.S. 693, to review the affirmance of a judgment
on a bond given by two contractors, with sureties,
Page 311 U. S. 16
to secure payment for labor and material supplied for the
performance of a contract with the United States.
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The United States brought this suit on behalf of George S.
Hallenbeck to recover upon a bond given by Fleisher Engineering
& Construction Company and Joseph A. Bass, with their sureties,
and providing for the payment for labor and material furnished
under a contract between the principals on the bond and the United
States for the construction of a certain housing project. Part of
the labor required by the contract was performed by Hallenbeck for
a subcontractor with the approval of the contractors. The suit was
brought under the Miller Act of August 24, 1935, 40 U.S.C. 270b.
Plaintiff obtained a summary judgment (D.C. 30 F.Supp. 964) which
the Circuit Court of Appeals affirmed. 107 F.2d 925.
The applicable provision of the Miller Act is set forth in the
margin.
* The question is
whether the giving of
Page 311 U. S. 17
the required written notice to the contractor was sufficient, as
it was not sent by "registered mail." The Circuit Court of Appeals
held that, as the receipt of written notice was conceded and the
contents of the notice were adequate, the statute was satisfied. In
view of alleged conflict with the decision in
United States for
Use and Benefit of John A. Denie's Sons Co. v. Bass, 111 F.2d
965, we granted certiorari. 309 U.S. 693.
In construing the earlier Act, the Hurd Act, for which the
Miller Act is a substitute, we observed that it was intended to be
highly remedial, and should be construed liberally.
United
States for Use of Alexander Bryant Co. v. New York Steam Fitting
Co., 235 U. S. 327,
235 U. S. 337;
Illinois Surety Co. v. John Davis Co., 244 U.
S. 376,
244 U. S. 380;
Fleischmann Construction Co. v. United States,
270 U. S. 349,
270 U. S. 360.
We recognized that the statute created a new right of action, and
that compliance with the prescribed limitation was essential to the
assertion of the right conferred. Accordingly, as it was provided
that a materialman could not bring suit on the contractor's bond in
the name of the United States within six months from completion and
settlement, the Court held that
Page 311 U. S. 18
this provision plainly conditioned the right to sue.
United
States ex rel. Texas Portland Cement Co. v. McCord,
233 U. S. 157,
233 U. S.
162-163. That ruling was distinguished in the case of
the
Alexander Bryant Company, supra, where it was held
that the provision of the Act requiring notice to be given to other
creditors by the creditor availing himself of the right to sue
within the specified year, if the Government did not bring suit
within six months after completion, was not "of the essence of
jurisdiction over the case" or "a condition of the liability" of
the surety on the bond. In short, a requirement which is clearly
made a condition precedent to the right to sue must be given
effect, but, in determining whether a provision is of that
character, the statute must be liberally construed so as to
accomplish its purpose. "Technical rules otherwise protecting
sureties from liability have never been applied in proceedings
under this statute."
Illinois Surety Co. v. John Davis Co.,
supra. The same principle should govern the application of the
Miller Act.
In the instant case, we may lay on one side the fact that the
notice was addressed to the project engineer. As the court below
said, it was admitted that the notice was in writing and was sent
by mail, and that it reached one of the two contractors who had
jointly and severally agreed to perform the contract. And, at this
bar, the actual receipt of the notice and the sufficiency of its
statements have not been challenged.
In giving the statute a reasonable construction in order to
effect its remedial purpose, we think that a distinction should be
drawn between the provision explicitly stating the condition
precedent to the right to sue and the provision as to the manner of
serving notice. The structure of the statute indicates the
distinction. The proviso, which defines the condition precedent to
suit, states that the materialman or laborer "shall have a
Page 311 U. S. 19
right of action upon the said payment bond upon giving written
notice to said contractor" within ninety days from the date of
final performance. The condition as thus expressed was fully met.
Then the statute goes on to provide for the mode of service of the
notice. "Such notice shall be served by mailing the same by
registered mail, postage prepaid," or "in any manner" in which the
United States marshal "is authorized by law to serve summons." We
think that the purpose of this provision as to manner of service
was to assure receipt of the notice, not to make the described
method mandatory so as to deny right of suit when the required
written notice within the specified time had actually been given
and received. In the face of such receipt, the reason for a
particular mode of service fails. It is not reasonable to suppose
that Congress intended to insist upon an idle form. Rather, we
think that Congress intended to provide a method which would afford
sufficient proof of service when receipt of the required written
notice was not shown.
In this view, we conclude that the Circuit Court of Appeals
correctly disposed of the case, and its judgment is
Affirmed.
* Section 2 of the Act of August 24, 1935, c. 642, 49 Stat. 794,
40 U.S.C. Sec. 270b:
"(a) Every person who has furnished labor or material in the
prosecution of the work provided for in such contract, in respect
of which a payment bond is furnished under section 270a of this
title and who has not been paid in full therefor before the
expiration of a period of ninety days after the day on which the
last of the labor was done or performed by him or material was
furnished or supplied by him for which such claim is made, shall
have the right to sue on such payment bond for the amount, or the
balance thereof, unpaid at the time of institution of such suit and
to prosecute said action to final execution and judgment for the
sum or sums justly due him:
Provided, however, That any
person having direct contractual relationship with a subcontractor
but no contractual relationship express or implied with the
contractor furnishing said payment bond shall have a right of
action upon the said payment bond upon giving written notice to
said contractor within ninety days from the date on which such
person did or performed the last of the labor or furnished or
supplied the last of the material for which such claim is made,
stating with substantial accuracy the amount claimed and the name
of the party to whom the material was furnished or supplied or for
whom the labor was done or performed. Such notice shall be served
by mailing the same by registered mail, postage prepaid, in an
envelope addressed to the contractor at any place he maintains an
office or conducts his business, or his residence, or in any manner
in which the United States marshal of the district in which the
public improvement is situated is authorized by law to serve
summons."