                                 No. 85-175
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1985




ROBINTECH, INC.,
                 Plaintiff and Respondent,


WHITE & McNEII, EXCAVATING, INC. ,
and TRANSAM.ERICA INSURANCE CO.,
                 Defendants and Appellants.




APPEAL FROM:     District Court of the Fourteenth Judicial District,
                 In and for the County of Musselshell,
                 The Honorable Roy RodQhiero, Judge presiding.

COUNSEL OF RECORD:

          For Appellant:
                 Landoe, Rrown, Planalp    &   Momrners; James M. Kommers,
                 Eozeman, Montana

          For Respondent:
                 Sardine, Stephenson, Blewett & Weaver; ~ i l l i a mD.
                 Jacobsen, Great Falls, Montana




                                    Submitted on briefs: Aug. 15, 1985
                                                    Decided: November 6, 1985


          NO!/ 6 - 985
Filed :




                                                     .,
                                                      .

                                    Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
        Defendants, prime contractor and its surety on a public
works project, appeal summary judgment in favor of plaintiff,
a materialman and supplier to a subcontractor, entered in the
Fourteenth Judicial District, Musselshell County, on December
28, 1984.     The District Court determined that as a matter of
law plaintiff was entitled to summary judgment in the amount
of $47,639, pl-us interest at 6 percent and costs.
        We affirm.      We hold that White     &    McNeil Excavating,
Inc., as the prime contractor, was bonded by Transamerica
Insurance Company       to   assure payment    to    its materialman,
Robintech, under the public works bonding provisions in Part
Two of Title 18, Chapter 2, MCA.        We hold that White    &   McNeil
had adequate legal notice on Robintech's claim, and Robintech
was entitled to payment under the contract and under the
bonding statutes.
        Both parties moved for summary judgment claiming that
the material facts were undisputed.          For its first issue on
appeal, White   &   McNeil challenges the court's conclusion that
Robintech was a supplier or a materialman to a subcontractor,
alleging that Waterworks Supplies Company was a materialman
and not a subcontractor.         Therefore, appellant urges this
Court, Robintech supplied a materialman and is not protected
by the bond.        For its second issue, appellant alleges error
in     the   court's    ruling   that   Robintech      complied    with
$    18-2-206, I I A by
                JC,       mailing invoices but failing to send
notice by certified mail of any claim upon the bond.
        The facts material to the summary judgment follow.           On
June 9, 1982, the City of Roundup, Montana, entered into a
public works contract with White        &   McNeil Excavating, Inc.,
for the construction of water main improvements to be incor-
porated into the city water system.                 White   &   McNeil, prime
contractors on the project, executed a payment bond with
co-defend.ant Transamerica Insurance Company as surety.
      The payment             bond   contained    the   following language:
              NOW, THEREFORE, if the PRINCIPAL shall
               romptly make payment - - persons,
                                      to all
              Firms,  .& corporations furnishinq
                          -



              materia.1~for or ~erforminalabor in the
              prosecution of - - p;ovided
                             t<e WORK           --
                                                for in
              such contract, and any authorized exten-
              - -or modification thereof, includinq
              sion
              all amounts - - materials. lubri-
                           due for
              cants, oil, gasoline, coal and coke,
              repairs on machinery, equipment and
              tools, consumed or used in connection
              - the
              with - construction - f- - WORK.
              ....    [~mphasis added.]
                                        o  such

A   further    provision         limited    the    claimants     entitled   to
coverage :
              PROVIDED, that beneficiaries or claim-
              ants hereund.er shall be limited to the
              SUECONTRACTORS, and persons, firms and
              corporations having a direct contract
              with     the     PRINCIPAL    or    its
              SUBCONTRACTORS.
      The general contract defined a "subcontractor" as "an
individual, firm or corporation having a contract with the
CONTRACTOR or with any other SUBCONTRACTOR for the perfor-
mance of the WORK at the site."                  "Work" was defined in the
contract as    "    [all1 labor necessary to produce the construc-
tion required by the CONTRACT DOCUMENTS, and all materials
and equipment incorporated - - - incorporated - -
                           or to be           in the
PROJECT."     (Emphasis added.)
      White     c    McNeil      contracted with Waterworks          Suppl-ies
Company as the sole direct supplier of pipe and all materials
for the project, and Waterworks in turn contracted with
Robintech to provide the pipe.             Steve McNeil testified at his
deposition tha.t he knew when they "were quoted the job, tha.t
it was Robintech pipe."       Robintech shipped its pipe directly
to the project and a representative of White          &   McNeil signed
for the pipe as consignee.        The packing lists and receipts
bore the Robintech letterhead.        Before the project comple-
tion, Betty White, secretary of the prime contractor, real-
ized that Waterworks was not paying for the Robintech pipe,
so she withheld payments to Waterworks.
      The City Council of Roundup met and approved final
payment to White    &   McNeil on or about August 3, 1982.            On
August 30, 1982, Robintech mailed a notice to the City of its
claim against the bond executed between White             &   McNeil and
Transamerica on the project, pursuant to notice requirements
for a right of action, B 18-2-204, MCA.      Defendants admitted
that copies of this notice were mailed to them the next day,
August 31, 1982.


                                  I

      Appellant    contends    that Waterworks       Supplies was      a
materialman, not a subcontractor, to White       &   McNeil, and that
Robintech supplied one who was not a subcontractor.              Arguing
that Rohintech did not have a direct contract with the prin-
cipal or a subcontractor, appellant claims that Robintech did
not qualify for protection under the limiting provision.
      We find no merit in appellant's contentions.                Water-
works had a contract with the principal, White            &   McNeil, to
provide materials, and Robintech had a contract with Water-
works to provide pipe.         Robintech was covered under the
limiting provision as well as the general bond.           Furthermore,
Robintech was protected under the bonding statutes for public
works projects, 5 18-2-201, et seq., as a materialman provid-
ing materials for the prosecution of work under the contract.
        First, appellant incorrectly argues that Waterworks was
only a supplier and not a subcontractor, apparently from a
misconception that a subcontractor must perform labor at the
work site.     White   &   McNeil contracted with Waterworks to
provide all its pipe for the public works project, knowing
that the pipe would be supplied by Robintech.           Under the
general contract, work encompassed both labor and materials
incorporated into the project.        Waterworks was clearly a
subcontractor on the project.      The bond assured payment to a
corporation having a direct contract with a subcontractor.
Robintech had such a contract and qualified under the limit-
ing provision of the bond.       Therefore, the prime contractor
or its surety was liable for payment.
       Second, Robintech is entitled     to c1a.i.m on the bond
under Montana's public works bonding statutes,     §   18-2-201 et
seq., MCA, provided that it gave adequate legal notice under
§   18-2-206, MCA.
             Bonding      requirements. (1) Whenever
             ...    any public body shall contract
             with any person or corporation to do any
             work for the     ...  city, . .   . such
             ...    body shall require the corpora-
             tion, person, or persons with whom such
             contract is made to make, execute, and
             deliver to such    ...  body a good and
             sufficient bond with     ... a licensed
             surety company as surety, conditioned
             - - corporation, person, or per-
             that such
             sons shall:
             (a) faithfully perform all of the provi-
             sions of such contract;
             Ib) pay all laborers, mechanics, subcon-
             tractors, and materialmen; and
             (c) pay       persons who shall supply
             such corporation, person or persons, -or
             subcontractors      with     provisions,
             provender, material, or supplies for the
             carrying on of such work.       [Section
             ?8-2-201, MCA. Emphasis added.]
      By statute, the bond assures payment to materialmen and
persons     supplying   the     corporation     or   subcontractor with
material.      Regardless       of     its   contract    with       Waterworks,
Robintech supplied White         &    McNeil which benefitted in ful-
filling its contractual promise.              When the City of Roundup
accepted the project as completed, it acknowledged. that all
of the provisions of the contract were performed, including
the insta.llation of the Robintech pipe.                Robintech supplied
the corporation of White         &    McNeil the material for the pro-
ject, White    &   McNeil knowingly received. the benefit, and its
surety company, Transamerica, has guaranteed payment.


                                       I1
      In claiming failure to comply with the notice required
under 5 18-2-206, MCA, appellant next makes an argument of
form over substance already decided in favor of respondent's
position in Treasure State Ind-ustriesv. Leigland (1968), 151
Mont. 288, 443 P.2d       22.        Appellant contends that Robintech
was only entitled to proceed against the contractor if it had
strictly complied with          the provisions for notice to the
contractor concerning subcontractor under                §   18-2-206, MCA,
sending a certified letter within thirty days to the contrac-
tor, which is a separate requirement from 5 18-2-204, MCA.
We have held that statutory notice was waived and the notice
provisions were satisfied if the prime contractor had actual
knowledge that materials were being furnished for the project
by a particular supplier and consented thereto.                       Treasure
State Industries v. Leigland (19681, 151 Mont. 288, 297, 443
P.2d 22, 27.       To require more notice than White            &   McNeil had
from the beginning in contract discussions and periodically
from direct shipments and packing lists and receipts would,
as in Treasure State, "be to require an idle act and to
defeat its claim on this ground would        deny it justice."
Treasure State, 443 P.2d at 2 7 .
        We find appellant's argument particularly strained in
requiring all or nothing notice by certified mail, otherwise
foreclosing respondent's claim.      Section 18-2-206(1), MCA,
provides that every person, firm or corporation furnishing
materials to be used in the work for the [city] shall "deliv-
er - send by certified mail to the contractor a notice in
   or
writing stating - substance and effect that [it has provided
                in
materials] with the name of the subcontractor or agent order-
ing or to whom the same is furnished and [the contractor or
his bond will be held for the same]   ." (Emphasis added.)   The
accompanying packing lists and receipts were written notice
stating in substance that Robintech provided materials, and
White   &   McNeil's duty under the provisions of this part to
its materialmen sufficed to hold the contractor and his bond
liable to pay.      Robintech provided the materials to White   &

McNeil for its project, qualifying under the bonding statute,
5 18-2-201, MCA.    We therefore conclude that the requirements
for notice in Treasure State Industries v. Leigland, supra,
are satisfied.
        Affirmed.
We concur:
