
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1577                      UNITED STATES OF AMERICA FOR THE USE AND,                      BENEFIT OF WATER WORKS SUPPLY CORPORATION,                                 Plaintiff, Appellee,                                          v.                          GEORGE HYMAN CONSTRUCTION COMPANY,                       NATIONAL UNION FIRE INSURANCE COMPANY OF                     PITTSBURGH, P.A., FEDERAL INSURANCE COMPANY                             AND SEABOARD SURETY COMPANY,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________               Steven  J. Comen,  with whom  Jeremy M.  Sternberg, Dori  C.               ________________              ____________________  ________          Gouin,  Howard J. Hirsch and Goodwin,  Procter & Hoar LLP were on          _____   ________________     ____________________________          brief for appellant, The George Hyman Construction Company.               Bert  J. Capone,  with  whom  CharCretia  V.  DiBartolo  and               _______________               _________________________          Cetrulo & Capone were on brief for appellant, National Union Fire          ________________          Insurance Company  of Pittsburgh,  PA; Federal  Insurance Company          and Seaboard Surety Company.               Gary H. Kreppel for appellee.               _______________                                 ____________________                                  December 10, 1997                                 ____________________                      CAMPBELL,   Senior  Circuit   Judge.     Defendant-                                  _______________________            appellant George Hyman Construction Company ("Hyman") appeals            from the district  court's judgment awarding recovery  to the            Water  Works Supply  Corporation  ("Water Works")  under  the            Miller  Act, 40 U.S.C.    270a-270d  (1986) (the "Miller Act"            or the "Act").   Hyman makes a number of arguments  as to why            the district  court  erred in  allowing  recovery.   In  this            opinion we  concentrate particularly on  Hyman's contentions:            (1) that Water  Works did  not satisfy  the Act's  ninety-day            notice requirement; and  (2) that Water Works did  not have a            sufficiently  close  relationship  to  Hyman  to  qualify for            recovery under the Miller Act.  Finding no merit in these  or            in the other arguments that Hyman advances, we affirm.                                   I.  BACKGROUND.                      The  facts are largely  undisputed.  Hyman  was the            general contractor  on  a $70  million  federal  construction            project  to  build  a  mail  processing  center  in  Waltham,            Massachusetts (the "Post  Office Project" or  the "Project").            Pursuant  to  the  requirements  of  the  Miller  Act,  Hyman            obtained  a payment bond  from National Union  Fire Insurance            Company  of Pittsburgh,  PA, Federal  Insurance Company,  and            Seaboard Surety Company  (collectively, the "Sureties").   On            or  about  September 16,  1994,  Hyman entered  into  an oral            agreement with Calvesco,  Inc. ("Calvesco"), wherein Calvesco                                         -2-            promised to  serve as  demolition, excavation  and site  work            subcontractor for the Post Office Project.                      On  September 16,  1994, the  same  day that  Hyman            hired Calvesco, Calvesco submitted an application for  credit            to  Water Works,  a  purveyor of  pipe and  piping materials.            Water Works extended an unlimited line of credit to Calvesco.            Calvesco was working on at least three projects at that time,            and the  credit application did  not indicate whether  it was            for a particular project.                      Subsequently, Calvesco informed Hyman that it could            not legally serve as subcontractor on the Post Office Project            because  it was  a non-union  shop.   On September  27, 1994,            Hyman  and  Calvesco  agreed to  replace  Calvesco  with Iron            Holdings,  Inc. d/b/a Charles  A. Jackson Co.  ("Jackson"), a            unionized company created by the principals of Calvesco.                       On October 11,  1994, Jackson notified Water  Works            that it  had replaced Calvesco  as subcontractor on  the Post            Office  Project.    Jackson requested  that  it,  rather than            Calvesco,  receive  Water Works's  invoices.   Because  Water            Works  had  extended  credit  only to  Calvesco  and  not  to            Jackson,  Water  Works  refused   to  supply  Jackson  unless            Calvesco executed a corporate guarantee.  Until the corporate            guarantee could be signed, Water Works agreed to  ship piping            materials  to the  Post  Office  Project  site  at  Jackson's            request and to send the invoices to Calvesco.  That same day,                                         -3-            Jackson placed  an order for  pipe.  Water Works  shipped the            material to  "Charles A. Jackson  Co., c/o Calvesco."   Water            Works  sent  the  invoice to  "Calvesco,  Inc.  Attn: Jackson            Gateman, Treas." ("Gateman").                      From early October through December 29, 1994, Water            Works  filled  seven  purchase orders  relating  to  the Post            Office Project.  Water Works  continued to ship materials  to            the  Post Office  Project site  and to  send the  invoices to            Gateman  at Calvesco.   Jackson  paid for  five of  the seven            shipments; the other  two invoices remain unpaid and  are the            subject  of  this action.    The  first unpaid  invoice,  for            $53,493.83  and dated November  30, 1994, corresponded  to an            order placed on  November 1, 1994 by Lou  Ingegneri, the Post            Office  Project manager  for  Jackson.    The  second  unpaid            invoice,  for $157.76 and dated  January 12, 1995, related to            the last delivery  made by Water Works to  the Project, which            occurred on December 29, 1994.   This second invoice does not            indicate the name of the person placing the order.                      During  January and February of 1995, Water Works's            credit manager Stanley Wernick  ("Wernick") conversed on  the            telephone  with   several  employees   of  Hyman   about  the            outstanding  November and  December invoices.    On March  7,            Wernick sent a demand letter  to Calvesco.  Wernick also sent            a  copy of  this letter  to Hyman  and the  Sureties.   Hyman            responded  to Wernick's communications in writing on March 22                                         -4-            by  indicating that  it had  turned  the matter  over to  its            attorneys and was not  paying any claims until it had a clear            picture of its options.                      On  April  5,  1995,  Water  Works  filed  suit  in            Middlesex  County  Superior Court  against  Calvesco and  its            personal guarantor for monies owed on several jobs, including            the Post Office Project.  This state court suit resulted in a            settlement in  which Calvesco agreed  to pay Water  Works for            the cost of  its materials.  Calvesco has  not satisfied this            judgment.                      On the  same day that  Water Works filed  its state            action,  it also  filed  a  one-count  Miller  Act  complaint            against Hyman and the Sureties  in the United States District            Court for the District of Massachusetts.  The  district court            consolidated Water  Works's federal  action with  twenty-five            other actions  brought against  Hyman arising  from the  Post            Office Project in  order to determine issues of  fact and law            common to all  the claimants.  The district  court found that            Calvesco  and Jackson  were separate corporate  entities, and            that Calvesco  was Hyman's  subcontractor from September  16,            1994  through September  27, 1994,  with  Jackson serving  as            subcontractor thereafter.                      Water  Works argued to  the district court  that it            was in a direct contractual relationship with Calvesco during            the  period  of   time  when  Calvesco  was   Hyman's  direct                                         -5-            subcontractor.   The district  court rejected  this argument,            finding that the  credit application between Water  Works and            Calvesco did not constitute a contract.                      Nevertheless, the court held that Water Works could            recover under the  Miller Act.  Finding that  Water Works had            satisfied  the 90-day notice  requirement in the  Miller Act,            the  court  held  that  Water Works  could  recover  from the            payment bond on the amount  owed for its November order under            two alternative theories.  First, Jackson had an open account            with  Water Works.   Second, Water Works  could recover under            the doctrine of quantum meruit.                      The district court  allowed Water Works  to recover            the amount of its November shipment -- $53,493.83, plus costs            and interest -- but not the amount of its December shipment -            - $157.76.   The key  distinction between the two  orders, in            the court's view,  was that the November order  was signed by            Jackson's project manager, whereas the December  order, being            unsigned, could not be plainly attributed to Jackson.                               II. STANDARD OF REVIEW.                      We   review   de novo    questions   of   statutory                                    __ ____            interpretation that present pure questions  of law.  See Riva                                                                 ___ ____            v. Commissioner of Mass., 61 F.3d 1003, 1007 (1st Cir. 1995).               _____________________            The sufficiency of notice under the Miller Act, to the extent            based  on undisputed  facts, is  commonly  reviewed de  novo.                                                                __  ____                                         -6-            See United States  ex rel.  Consol. Elec.  Distribs., Inc. v.            ___ ______________________________________________________            Altech, Inc.,  929 F.2d  1089, 1092  (5th Cir.  1991); United            ____________                                           ______            States ex rel. Moody v. American Ins. Co.,  835 F.2d 745, 748            ____________________    _________________            (10th  Cir. 1987).    We uphold  a  district court's  factual            findings unless they are clearly erroneous.  See Fed. R. Civ.                                                         ___            P. 52(a); United  States ex rel. Calderon &  Oyarzun, Inc. v.                      ________________________________________________            MSI Corp., 408 F.2d 1348, 1348 (1st Cir. 1969).            _________                                   III. DISCUSSION.                 A.   The Statutory Scheme of the Miller Act.                      ______________________________________                      The  Miller  Act  requires  a  general   contractor            performing a contract  valued at over  $25,000 on any  public            construction project  to obtain  a performance  bond for  the            protection of  persons supplying  labor and  material in  the            prosecution  of the  work on  the project.   See 40  U.S.C.                                                           ___            270a(a)(2).    The   Act  provides  that  persons   who  have            "furnished labor or material" to  a public project may sue to            recover from the payment bond  any amount owed to them.   Id.                                                                      ___              270b(a).                      The  purpose of  the  Miller  Act  is  "to  protect            persons  supplying labor and material for the construction of            federal public buildings in lieu of the protection they might            receive under state statutes with respect to the construction            of nonfederal buildings."   United States ex  rel. Sherman v.                                        ______________________________            Carter, 353 U.S.  210, 216 (1957); see also  United States ex            ______                             ___ ____  ________________                                         -7-            rel. Pittsburgh Tank  & Tower, Inc. v. G&C Enters.,  Inc., 62            ___________________________________    __________________            F.3d 35, 35  (1st Cir. 1995) (same).   Courts give the  Act a            liberal interpretation to  achieve that purpose.   See, e.g.,                                                               _________            Carter, 353  U.S. at 216;  Clifford F. MacEvoy Co.  v. United            ______                     _______________________     ______            States ex rel. Calvin Tomkins Co., 322 U.S. 102, 107 (1944).            _________________________________                      Despite the  "highly remedial"  nature of the  Act,            MacEvoy, 322 U.S. at 107, there are two important limitations            _______            on who can recover from the  payment bond.  First, the Miller            Act  allows recovery  from the  bond  by persons  who have  a            "direct  contractual relationship"  with  either the  general            contractor  or  a  first-tier  subcontractor  of  the general            contractor.   40 U.S.C.    270b(a).   The  Supreme Court  has            interpreted  this  provision  to  preclude  recovery  on  the            payment  bond by  anyone whose  relationship  to the  general            contractor is  more remote than a  second-tier subcontractor.            See J.W. Bateson Co. v. United States ex rel. Bd. of Trustees            ___ ________________    _____________________________________            of the  Nat'l Automatic  Sprinkler Indus.  Pension Fund,  434            _______________________________________________________            U.S. 586, 590-91 (1977); MacEvoy, 322 U.S. at 107.                                     _______                      Second, the Act imposes a strict notice requirement            upon  suppliers who  have a  direct  contractual relationship            with a first-tier subcontractor, but no relationship with the            general contractor.   In  order to  recover from  the payment            bond, such suppliers must send written notice of  their claim            on  the payment bond to  the general contractor within ninety            days from the date that they supply the last of the materials                                         -8-            for which they  make a claim.  40  U.S.C.   270b(a); see also                                                                 ___ ____            United  States  ex  rel.  John D.  Ahern  Co. v.  J.F.  White            _____________________________________________     ___________            Contracting Co., 649 F.2d 29, 31 (1st Cir. 1981).1            _______________                 B.   Notice under the Miller Act.                      ___________________________                      Fulfilling the Act's  notice provision is  a strict            condition precedent  to recovery  by suppliers of  first-tier            subcontractors.   See  Ahern, 649  F.2d  at 31.   The  notice                              ___  _____            provision serves an important purpose:  it establishes a firm            date  after  which   the  general  contractor  may   pay  its            subcontractors  without  fear  of  further  liability to  the            materialmen or suppliers  of those subcontractors.   See id.;                                                                 ___ ___            Noland Co. v. Allied Contractors, Inc., 273 F.2d 917,  920-21            __________    ________________________            (4th Cir. 1959).                                            ____________________            1.  The relevant  statutory language concerning  notice reads            as follows:                      Every person who has furnished labor or material in                 the  prosecution of  the work  provided  for [a  federal                 project]  .  .  . and  who  has  not been  paid  in full                 therefor  . .  . shall  have the  right to  sue on  such                 payment bond  . . .  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 .  . .                 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. .  . . Such  notice                 shall be served by mailing the same by  registered mail,                 postage  prepaid,  in   an  envelop  addressed  to   the                 contractor . . . .            40 U.S.C.   270b(a).                                         -9-                 1.   Substance of Water Work's Notice.                      ________________________________                      While  adherence  to  the  notice  requirement   is            mandatory, courts have allowed some informality  in complying            with  the terms  of the  Miller Act  regarding the  method by            which notice  must be  served.  See,  e.g., Fleisher  Eng'g &                                            __________  _________________            Constr. Co. v. United States ex rel. Hallenbeck, 311 U.S. 15,            ___________    ________________________________            18  (1940) (holding written notice sufficient although it was            not  sent via registered mail as statute provides); Coffee v.                                                                ______            United States  ex rel.  Gordon, 157 F.2d  968, 969  (5th Cir.            ______________________________            1946)  (holding that  a  writing  exhibited  to  the  general            contractor in the  course of a discussion  served as adequate            notice  under the  Act).    Courts  have also  been  somewhat            forgiving of deviations from  the statutory requirement  that            the  notice be in  writing.  See,  e.g., Altech,  929 F.2d at                                         __________  ______            1092 (holding  that the  "only reasonable  inference" from  a            meeting  was that the  subcontractor sought payment  from the            general contractor).                      The language of  the Miller Act requires  notice to            the general contractor of the amount of the claim and name of            the party  to whom  the material was  furnished; it  does not            expressly require a  demand that the general  contractor pay.            40 U.S.C.   270b(a);  see also McWaters &  Bartlett v. United                                  ___ ____ ____________________    ______            States ex  rel. Wilson, 272  F.2d 291, 295 (10th  Cir. 1959).            ______________________            Nevertheless,  courts   have  consistently,   and  we   think            correctly,  held that  "the  written notice  and accompanying                                         -10-            oral statements must inform the general contractor, expressly            or impliedly,  that the  supplier is  looking to  the general            contractor for payment  so that it  plainly appears that  the            nature and state of the  indebtedness was brought home to the            general  contractor."   United States  ex  rel. Kinlau  Sheet                                    _____________________________________            Metal Works,  Inc. v. Great Am.  Ins. Co., 537 F.2d  222, 223            __________________    ___________________            (5th  Cir.  1976)  (internal quotation  marks  omitted);  see                                                                      ___            also United States ex  rel. Bailey v Freethy, 469  F.2d 1348,            ____ _____________________________   _______            1350-51 (9th Cir. 1972).                      Hyman  argues that such  notice as Water  Works was            shown to have  provided to Hyman did not  indicate that Water            Works was looking to it  for payment because the only "formal            notice" that it  received was a copy of  Water Works's demand                                            ____            letter to Calvesco.  Hyman points to court  decisions holding            that the mere forwarding to  the general contractor of a copy            of  a demand  sent to  a subcontractor  does not  satisfy the            Miller  Act's notice  requirement.   See Maccaferri  Gabions,                                                 ___ ____________________            Inc. v. Dynateria, Inc., 91  F.3d 1431, 1437 (11th Cir. 1996)            ____    _______________            (denying recovery under the Miller Act because sending to the            general contractor  a copy  of a  collection letter  that was            sent to the  subcontractor, even when  combined with a  joint            payment plan  and invoices, was insufficient  notice); United                                                                   ______            States ex rel. Jinks Lumber Co. v. Federal Ins. Co., 452 F.2d            _______________________________    ________________            485, 488 (5th Cir. 1971).                                           -11-                      But while adequate notice requires bringing home to            the general contractor that the supplier is looking to it for            payment,  courts have not required formalistic proof of this.            Communications sent  to the general  contractor detailing the            supplier's  claim against the subcontractor may, for example,            be supplemented by  oral and other written exchanges if these            make  it unambiguously  clear that  the  supplier is  seeking            payment from the general contractor.  See Altech, 929 F.2d at                                                  ___ ______            1093; Coffee, 157 F.2d at 970; Kinlau, 537 F.2d at 223.                  ______                   ______                      The record  here shows  not only  that Water  Works            sent Hyman  the amount  and details  of Water  Works's claims            against the subcontractor, but that these were accompanied by            further  oral and written  communications that could  only be            perceived, and  were in fact  perceived, as looking  to Hyman            itself for payment.   Water Works's credit  manager, Wernick,            initiated  matters on February  3, 1995,  by speaking  on the            telephone with two Hyman employees who were handling the Post            Office Project account.   During the course of  several calls            on that day,  Wernick informed them that Water  Works had not            been paid  by the subcontractor  for its materials.   Wernick            thereupon faxed copies  of Water Works's unpaid  invoices and            proofs  of delivery  to Hyman,  thus informing  Hyman of  the            amount  Water  Works  claimed from  the  subcontractor.   The            district court found that, in these calls, Wernick also asked            to obtain  a copy  of Hyman's payment  bond for  "the express                                         -12-            purpose of filing  a bond claim."  Hyman's  personnel refused            to release  the requested  bonding information,  but, as  the            district  court found,  they countered  with  a promise  that            Hyman would issue  joint checks payable to  Jackson and Water            Works,  a  device   to  ensure  payment  for   Water  Works's            materials.  Wernick continued to communicate about the unpaid            claims with  Hyman  throughout the  month  of February.    On            February  9,  Wernick   spoke  again  with  the   same  Hyman            employees, who informed him that they were attempting to meet            with the  subcontractor to  discuss the issue  of the  unpaid            invoices.  Finally on March  7, after more phone calls, Water            Works sent to Hyman a copy of  a demand letter it had written            to Calvesco.2  The copy reflected at the bottom not only that            a copy  had gone to  Hyman but that  copies had been  sent to            Hyman's three  Miller Act  Sureties.   Finally, on March  22,            1995, Hyman wrote Water Works  thanking it for its  patience,            indicating that it  had already paid Jackson,  expressing its                                            ____________________            2.  Hyman argues that "the facts of the present case are even            more persuasive  than Maccaferri or  Kinlau since Water Works                                  __________     ______            purported demand  letter  .  .  .  was  not made  to  Hyman's                                                    ___            subcontractor Jackson, but rather to Calvesco."  However, the            names  "Calvesco"  and  "Jackson"  seem  to  have  been  used            interchangeably on various occasions, and there is absolutely            no evidence that Hyman was  confused over the identity of the            subcontractor  identified  by  Water  Works.    Calvesco  and            Jackson were owned in  common and Hyman had  been a party  to            the  agreement  that  substituted  Jackson  for  Calvesco  as            subcontractor for the  Project.  While Hyman  personnel, like            Water  Works,  sometimes  referred  to "Calvesco,"  the  name            "Jackson" was correctly used by  Hyman in its March 22 letter            to Water Works declining to pay its claim, showing that Hyman            was fully aware of thecorrect identity of the subcontractor.                                          -13-            reluctance  to pay the  same bill twice,  and informing Water            Works  that it  had "turned  the  entire matter  over to  our            attorneys and, on  their advi[c]e, we  are not paying  anyone            until we have a clear picture of our options."                      The above  evidence provides clear  indication that            Hyman  understood  that Water  Works  was looking  to  it for            payment, having received, as the district court found "actual            notice."  Wernick's  initial request for a copy  of the bond,            following his faxing of the unpaid invoices and his telephone            calls to Hyman about the debt, suggested that Water Works was            looking to it for payment.  Hyman's comprehension of this can            be  inferred from  Hyman's promise to  issue joint  checks in            substitute for information  about the bond.  But  we need not            decide  whether  these  actions  by  themselves  sufficed  to            constitute  notice.   Following  these  and other  exchanges,            Water Works  sent Hyman on  March 7  a copy of  Water Works's            demand   upon  the  subcontractor.     Unlike  the   copy  in            Maccaferri, this  indicated at  the bottom  that copies  were            __________            also being sent  to Hyman's three Sureties on  the Miller Act            bond, each of which was designated  by name.  It is not  easy            to  think of  a reason  to notify  the Sureties  unless Water            Works was looking to the bond for payment.                      In  Maccaferri,  the  Eleventh  Circuit  held  that                          __________            merely sending the general contractor a copy of the demand to            the subcontractor did not suffice  to show that the  supplier                                         -14-            was looking for  payment to the general, but  the surrounding            circumstances  were  far  less  indicative that  payment  was            sought, and there  was no indication  that the Sureties  were            being sent  copies.  Here,  upon receipt of  a copy of  Water            Works's  demand upon  the subcontractor showing  plainly that            other  copies had been sent  to Hyman's Sureties, Hyman could            have had no illusion that it was not being asked to pay.                      Hyman's letter of March 22, 1995 fully confirms our            interpretation.   In the  letter, Hyman  thanked Water  Works            "for being so patient with us while we are trying to sort out            the problems"  relative to  the Jackson  claims.   The letter            went  on to  speak  of  Hyman's  difficulties  with  Jackson,            Hyman's strong  reluctance to  pay the  same bill  twice, and            that it had  "turned the entire matter over  to our attorneys            and,  on their advice, we are not paying anyone until we have                                          _________________            a clear  picture of our  options" (emphasis added).   "In the            end,"  the  letter  went  on,  "we  may,  in  fact,  be  held            responsible for paying these  invoices.  But we  will exhaust            every legal  remedy  before  we  do."    The  district  court            inferred, and we  entirely agree, that this  letter must have            been in  response to  what Hyman believed  was a  request for            payment  by  Water Works.    See  Altech,  929 F.2d  at  1093                                         ___  ______            (general  contractor's  letter held  to  provide  evidence of            notice).                                           -15-                      We, therefore,  agree with the district  court that            in this period  Hyman received notice sufficient  to meet the            requirements of the Miller Act.                 2.   Timing of Water Works's Notice.                      ______________________________                      The district court found that the ninety-day period            began  to run on December 29,  1994, the day that Water Works            made its  final  delivery of  materials  to the  Post  Office            Project.   Thus, by  the court's calculations,  Water Works's            letter of March  7, 1995, a copy  of which was sent  to Hyman            and the Sureties,  and which in combination with  the earlier            invoices constituted the  written portion of the  notice, fit            within the ninety-day limit.                      In support of  its assertion that the  court should            have used the  date of the November order,  November 1, 1994,            rather  than the date of  the December order when calculating            the ninety-day  time limit,  Hyman suggests  that each  order            under an  open account represents a separate contract with an            individual  ninety-day  limit.   See  United  States  ex rel.                                             ___  _______________________            Robert  DeFilippis  Crane  Serv.,  Inc. v.  William  L.  Crow            _______________________________________     _________________            Constr.   Co.,  826  F.   Supp.  647,  655   (E.D.N.Y.  1993)            _____________            (concluding  that "[w]here  claims are based  on a  series of            contracts, a claim must be made within  90 days from the date            on which the supplier 'furnished  or supplied the last of the            material' for each  underlying contract");  United  States ex                                                        _________________            rel. I. Burack, Inc. v. Sovereign  Constr. Co., 338 F.  Supp.            ____________________    ______________________                                         -16-            657,  661 (S.D.N.Y.  1972).    Under  this  reasoning,  Hyman            argues,  the limit on the November order  had run by the time            that Water Works sent notice to Hyman.                      While several district courts have held that Miller            Act  notice runs  from each  order on  an open  contract, the            weight  of authority contradicts  that position.   See United                                                               ___ ______            States ex rel. A&M Petroleum, Inc. v. Santa  Fe Eng'rs, Inc.,            __________________________________    ______________________            822  F.2d 547  (5th  Cir. 1987)  (collecting  cases from  the            Second, Fourth,  and Tenth  Circuits that  have held,  either            implicitly or explicitly, that notice on an open account runs            from the  last delivery  of materials);  Noland, 273  F.2d at                                                     ______            920-21.    In  Noland,  the  Fourth  Circuit  reasoned  that,                           ______            although a  strict reading might  fulfill the purpose  of the            notice provision by  offering more protection to  the general            contractor, the goal  of a specific statutory  provision must            take a back seat to the purpose of the overall statute, which            is  to provide  recovery  for  suppliers  who  have  provided            materials but  not received  compensation.   See Noland,  273                                                         ___ ______            F.2d at 920-21.                      We  agree  with  the reasoning  in  Noland.   Where                                                          ______            claims are based  on an open  account theory, the  ninety-day            notice period for all of the deliveries begins on the date of            the last delivery to the project.  The parties to this action            agree that Water Works delivered the last of its materials to            the Post Office  Project on December 29, 1994.   We therefore                                         -17-            conclude  that the district  court correctly refused  to deny            recovery on the November order  merely because it was part of            an open account.                      Hyman also  argues that, since  the district  court            denied  recovery to  Water  Works for  the December  order of            $157.76,  it should not have used  the date of that order for            purposes of calculating the timeliness of notice.  We are not            persuaded.                      As  an initial  matter, we  note  that the  statute            states that  the time  limit runs from  the date of  the last            delivery of material "for which a claim  is made."  40 U.S.C.              270b(a).  The statute does not  start the time limit on the            last  claim for which the plaintiff eventually recovers; such            a provision might prove unworkable.                      But   even  if  the  statute  runs  from  the  last            recoverable claim, we see little  problem.  In denying  Water            Works  recovery on  the December  order,  the district  court            wrote a footnote explaining its reasoning for  distinguishing            between  the November and December orders: the November order            form contained the name of a Jackson employee while there was            no name on the December  order.  The district court concluded            that there was "no evidence as to whether Calvesco or Jackson            placed the [December] order."  Accordingly, the court limited            Water Works's recovery  to the amount  of the November  order            ($53,493.83) plus costs and interest.                                         -18-                      The  undisputed facts are as follows.  First, Water            Works provided materials that were incorporated into the Post            Office Project.   Second, Water Works did  not begin shipping            these materials until after Jackson became the  subcontractor            on the  Project.  Third,  although Water Works  insisted upon            sending its invoices  to Calvesco, Jackson paid for the first            five shipments  by Water Works.   Fourth, Calvesco was  not a            subcontractor on the Project during the time that Water Works            shipped materials to the Project.   Fifth, the last date that            Water Works delivered  materials to the Project  was December            29, 1994.                      On these facts,  we see no reason for  the court to            have  questioned if Calvesco  rather than Jackson  placed the            December order.  Calvesco, having been replaced by Jackson as            the  subcontractor on the Post  Office Project, had no reason            to  order  materials  for  this  job.   The  only  reasonable            inference  is  that  Jackson placed  this  order,  as  it did            earlier ones.   While in the  absence of a  cross appeal, the            court's denial  of the  $157.76 stands, we  see no  reason to            reject the court's  determination that the December  29, 1994            date triggered the notice period.                      As  the notice  was adequate  and  as the  district            court  did  not  err  in  beginning  the  notice period  from            December   29,  1994,  Water   Works  satisfied   the  notice            requirements of the Miller Act.                                         -19-                 C.   Water Works's Relationship to Hyman.                      ___________________________________                      In order to recover from the payment bond, a person            must have a "direct contractual relationship" either with the            general contractor or with a direct subcontractor.  40 U.S.C.              270b(a); see  also Bateson, 434 U.S. at 590-91.   Hyman and                       ___  ____ _______            Water  Works  agree  that they  had  no  direct relationship.            Hyman argues further  that Water Works did not  have a direct            contractual relationship with any of Hyman's  subcontractors.            Hyman  relies upon  the  undisputed  fact  that  Water  Works            consistently refused to extend credit to Jackson and regarded            Calvesco as its customer.                      As  the district court correctly noted, courts have            allowed  recovery under  the  Miller  Act  by  suppliers  who            furnish materials  to a subcontractor  "from time to  time on            open account  . .  . without formal  contract."   Noland, 273                                                              ______            F.2d at  919; see also  Apache Powder Co. v. Ashton  Co., 264                          ___ ____  _________________    ___________            F.2d  417, 422-23  (9th Cir.  1959).   It is  undisputed that            Water  Works supplied  materials  to  the  Project  and  that            Jackson  was  the   demolition,  excavation  and   site  work            subcontractor  on the Post Office Project after September 27,            1994.  In addition, Jackson, rather than Calvesco, paid Water            Works's  first five invoices.  This evidence clearly supports            the  district court's  finding  of the  existence of  an open            account  between Jackson and Water  Works.  Since Jackson was                                         -20-            Hyman's direct subcontractor,  the Act's tiering requirements            are satisfied.                      Since we  find  that the  district court  correctly            allowed Water Works to recover  under an open account theory,            we need not address the propriety of its alternative holding,            which allowed recovery on the basis of quantum meruit.                      We   have   carefully  considered   Hyman's   other            arguments; none of them  persuade us that the district  court            erred in its determination.                      Affirmed.                      ________                                         -21-
