Circuit Judge (dissenting):
Since I cannot agree with the majority’s treatment of the ratification issue, *283which I believe determinative of the timeliness of Trane’s claim for materials it supplied to Raymar, I must dissent. On the facts of this case, I am at a loss to understand the basis for the majority’s conclusion that Trane was “an utter stranger” to the contract between Gel-co-Burjay and Kliesrath. I believe it is quite clear that Trane involved itself because Kliesrath was permitted by Trane to hold himself out as one empowered to act for it in dealing with Gelco-Burjay. Not only was Kliesrath Trane’s salesman, but as my brother Hays states, Trane’s New York office referred Gel-co-Burjay’s agent to Kliesrath when he inquired about the purchase of motors from Trane. In addition, it seems obvious that Kliesrath’s purpose in creating the “Long Island Trane Service Co.” and directing that payment for the motors be made to it was to create the impression that he was indeed effecting the transaction on behalf of a subsidiary or division of the Trane Company — a notion reinforced by the circumstance that Trane did actually have a division similarly named “The New York Trane Service Company.” And since Kliesrath had thus purported to act for Trane in selling the motors to Gelco-Burjay, and inasmuch as Trane clearly could have authorized the sale, as in the past it had authorized many similar transactions by its salesmen, I believe that Trane had the power to and did in fact and law ratify the sale by bringing this action for the purchase price of the motors.
I hasten to add that I agree that such ratification did not entitle Trane to recover the amount of its claim, since it would follow that in affirming the sale, it could not disavow the payments made by Gelco-Burjay to Kliesrath extinguishing the claim. A principal cannot selectively ratify only those portions of a transaction which would inure to its benefit. Restatement (Second) of Agency § 96 (1957). In short, it cannot have its cake and eat it too. But, by its ratification in bringing the suit on its claim, Trane, as a consequence, became the supplier of the motors.
Under the Miller Act statute of limitations, 40 U.S.C. § 270b (b), it seems clear to me that Trane’s act of ratification fixed the date on which it supplied the last material for the government project as July 10, 1961, less than a year before it instituted this action. It should be noted also that the lower court determined that even if the ratification doctrine was applicable, Trane’s claim for the materials it had supplied to Ray-mar was time barred because the judge interpreted the one year statute of limitations in § 270b (b) as running from “ ‘the day on which the last of the material was supplied’ on each separate contract.” I believe that this interpretation was erroneous and would lead to complexities which the history of the statute indicates Congress was trying to overcome. It is more in keeping with Congressional intent for us to construe the one-year limitation as running only once for each supplier on a job, commencing on the last day he supplied any material for work under the prime contract. See United States of America for Use and Benefit of General Electric Co. v. Southern Construction Co., Inc., 383 F.2d 135 (5th Cir. 1967), cert. denied 390 U.S. 955, 88 S.Ct. 1049, 19 L.Ed.2d 1148 (1968). Not only does this result better comport with the literal language of § 270b(b), which contains no requirement that the time limit should run separately for each separate claim, as does § 270b(a) (dealing with the 90 day notice provision), but I believe it wiser doctrine. Otherwise, a materialman would be required to bring multiple suits to recover for materials which he supplied to a single project under separate contracts spread over several years. Piecemeal litigation is a plight to be avoided wherever feasible.
Accordingly, I believe that' since Trane ratified the motors sale, it supplied materials for the project within a year of bringing suit. The action for equipment furnished to Raymar is timely, and I would reverse on this claim.