This is the second time this case has been before us. On October 23, 1962 we dismissed the first appeal because the summary judgment was only partial and there was a further undetermined claim for $1,715. United States for the Use and Benefit of Charles R. Joyce & Son, Inc. v. F. A. Baehner, Inc., 2 Cir., 1962, 309 F.2d 154. The action is by the United States for the use of Charles R. Joyce & Son, Inc., a firm which claimed there was a balance due for work and materials furnished to the sub-contractor F. A. Baehner, Inc. on a project for the construction of a building known as Building E-5, Phase 2, a Reactor Cell, at the Knolls Atomic Power Laboratory in the Town of Niskayuna, County of Schenectady, New York, under Contract AT(30-3)464 with the Atomic Energy Commission on behalf of the United States. Plambly Construction Company, Inc. was the contractor with the United States and the usual Miller Act bond for proper performance of the work and the payment of bills was furnished by National Surety Company, 40 U.S.C. § 270b.
After the remand it was found by the District Court that Joyce “had failed to prove its right to recover said amount of $1,715” and the claim was dismissed on March 7, 1963, the amended judgment being entered on March 21, 1963. The District Court, however, adhered to its original decision holding in favor of Joyce for an alleged balance due in the amount of $5,890.60. This appeal by Hambly and National Surety followed.
The controlling language of the Act, 40 U.S.C. § 270b, is
“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.”
This has very naturally been construed by the courts as requiring that “the wi’iting must inform the prime contractor, expressly or by implication, that the supplier is looking to the contractor for payment of the subcontractor’s bill.” Bowden v. United States, 9 Cir., 1956, 239 F.2d 572, at page 577, citing numerous authorities. The ruling in this Circuit is the same. United States for Use and Benefit of J. A. Edwards & Co. v. Thompson Construction Corp., 2 Cir., 1959, 273 F.2d 873, 876. True it is that the Act is to be liberally construed. But to eliminate the minimal requirement just set forth would entirely emasculate the statute.
Applying this test, and disregarding the fact that the first letter was sent before the completion of the work to be performed by Joyce, the letters are plainly insufficient. They do not even intimate or suggest that any claim is being asserted against the prime contractor or that Joyce is looking to the prime contractor for the payment of his bill.
The first letter under date of July 29, 1960, entitled “Bldg. E5, Phase II Reactor Cell, Knolls Atomic Energy Comm.” informed Hambly, allegedly confirming a conversation of the previous day, “it is our understanding that you will guarantee payment of liabilities accumulated by the F. A. Baehner Company with respect to ventilation work performed on the subject project.” Hambly replied on August 3, 1960 denying any agreement to guarantee payment of Baehner’s liabilities and stating that Hambly did “not feel there is any doubt that arrangements can be made so that your payment will be forthcoming.”
The next letter from Joyce to Hambly, of August 4, 1960 refers to the letter of July 29, 1960 and states that the amount “to be paid to our company” has been changed from $7,530.60 to $7,605.60. Still no intimation that Joyce will look to Hambly for the payment of its bill.
The final letter from Joyce’s lawyers to Hambly is as follows:
“August 22, 1960
Mr. W. J. Hambly
Hambly Construction Company
P. O. Box 78
Oneonta, New York
Re: Charles R. Joyce & Sons, Inc.
Subcontractor with F. A. Baehner, Inc.
Building E-5, KAPL, Niskayuna, New York
Dear Mr. Hambly:
In accord with our telephone conversation this morning, I am confirming our understanding of your position presently in our dispute with F. A. Baehner, Inc.
You’ve indicated that your request for final approval and acceptance of this contract will be made within 10 days or so. And that no further payments will be made to Baehner until some satisfactory provision has been made by him for the payment of our claim thereunder in the amount of $7,605.60.
We would appreciate being advised of your progress in getting this contract accepted, and of anyPage 559other developments which may assist us in protesting our claim.
Very truly yours,
Newkirk & DiFabio E. Michael DiFabio
EMD :cg
cc to: Harold Kearny
Firemen’s Fund Insurance
Co.
90 State Street Albany, New York”
What Joyce and its attorneys were trying to do was to get Hambly to put pressure on Baehner. That is why the letter of August 22, 1960 contains the sentence: “And that no further payments will be made to Baehner until ■some satisfactory provision has been made by him for the payment of our claim thereunder in the amount of $7,-605.60.”
This is no slip-up by Joyce. There were doubtless a number of reasons why, acting on the advice of its lawyers, Joyce did not feel in any position to send a Miller Act notice to Hambly. 'One of these would seem to be its breach of contract reflected in the dismissal by the District Court of its claim for the additional $1,715.
Reversed with a direction to dismiss Joyce’s complaint.