The United States has instituted this suit on behalf of Twin County Transit Mix, Inc. (referred to herein as the plaintiff) on a bond given by the defendant R. P. McTeague Construction Corp. (McTeague) under the Miller Act, 40 U.S.C.A. § 270a-d, for the purpose of securing payment for labor and material supplied under a contract entered into by McTeague with the Government.
McTeague was the general contractor for thе construction of an automotive maintenance shop at the Suffolk County Air Base under a contract entered into with the Government, dated February 12, 1964. In connection with the execution оf the contract McTeague delivered to the Government a bond executed by Fidelity and Deposit Company of Maryland as surety, in the sum of $205,747.50, conditioned upon the payment of claims оf persons supplying labor and material for the construction of the above mentioned project.
About February 24, 1964 McTeague sublet to Jondray Construction Corp. the performance of certain concrete work required for the construction of the project by the plans and specifications referred to in the general contract. Between April 16,1964 and July 18,1964, pursuant to orders received from Jon-dray Construction Corp., the plaintiff delivered to the site of the project a total of 716 cubic yards of concrete which was used by Jondray in the prоsecution of its work on the project. A dispute developed between McTeague and Jon- *620 dray and Jondray’s services at the job site were terminated during July 1964. The date of the last delivery by thе plaintiff was July 18, 1964. The agreed price and reasonable value of the concrete delivered was $9,760.75, no part of which was paid. Plaintiff claims that it mailed to McTeague an unregisterеd letter dated September 4, 1964 demanding from it payment of the sums due from Jondray. McTeague denies receiving the letter and consequently a question of fact is presented.
I
One of the purрoses of the registered mail requirement in the Miller Act is to require written notice to a general contractor by those supplying labor and material within ninety days after completion of thе work, in order that the contractor may delay settlement with his sub-contractor and thus protect himself and his bond against unknown claimants with whom he has no direct contractual relationship. Coffеe v. United States, 5 Cir. 1946,
The evidence in this case upon that question is conflicting. Joseph Muratore, the president of plaintiff testified, among other things, that in mid-June of 1964 he told McTeague, the presidеnt of defendant, at the job site that Jondray had not paid him; that in mid-July he again told McTeague at *621 the job site that he had not been paid; that in the latter part of July he received a teleрhone call from McTeague at which time he told McTeague again that he had not been paid, at which time McTeague assured him not to worry about payment; that on September 4, 1964 he dictated and signed a letter to McTeague (a copy of which was introduced in evidence as Exhibit 6) in which he demanded payment of the sums owed to plaintiff by Jondray and that prior to dictаting the letter he had talked with his attorney Morris Gaines; that the usual practice in his office was to place the letter in an envelope and to send one of the girls to the Post-Office tо mail the same and that the envelope used contained a notation upon the outside of plaintiff’s address; that a week after September 4, 1964 he received a telephonе call from McTeague who stated that he received the letter and would like to discuss the matter with him at MeTeague’s office and that McTeague would have his attorney there, whereupon Muratore replied that he would have his attorney there also; that he later telephoned his attorney Morris Gaines and told him of this conversation. McTeague, on the other hand, dеnied any discussions with Muratore at the job site or over the telephone regarding any monies due Muratore from Jondray and denied making any appointment with Muratore for late Septembеr. In fact, he denied any notice or knowledge that sums were due Muratore from Jondray until shortly before he was served with a summons and complaint in this action.
Morris Gaines (Muratore’s attorney) testifiеd that about a week after September 4, 1964 (on which date more than a month remained during which a registered letter could have been mailed), Muratore had telephoned him and stated thаt he, Muratore, received a telephone call from McTeague in response to the September 4th letter, that McTeague wanted to sit down and discuss the matter, and that an aрpointment had been made for a Friday in the middle of September at 2 P.M. at MeTeague’s office' that the day before the appointment Gaines called MeTeague’s office for confirmation and was told that McTeague' was out of town; that when he called later on the Friday morning designated he was informed by a girl in Me* Teague’s office that the appointment was actually postponed; that thereafter he attempted to contact McTeague by telephone several times and left repeated messages but “got pretty much nowherе”. Hilda Paukovitz, secretary to Muratore, testified, after examining a carbon copy of the September 4, 1964 letter with her initials thereon, that the same was typed by her after dictation from Mur-atore and that in the regular course of business in the office all letters were mailed in stamped envelopes by her the same day and that while she did not remember mailing this particular letter she received responses to other letters she mailed that day. McTeague admits that he had meetings and discussions with Muratore in mid-June, mid-August and mid-September at the job site, but he states that at none оf these meetings was the subject of Jondray’s indebtedness to the plaintiff ever discussed. In view of MeTeague’s contingent liability as a general contractor to the plaintiff, it would appeаr most unlikely that this liability was not discussed in connection with Jondray’s unsatisfactory performance which admittedly was discussed.
The Court finds that the testimony of Muratore was much more probable and cоnvincing than the repeated denials of McTeague. Moreover, Muratore’s testimony was substantiated by circumstantial testimony of Paukovitz and Gaines. It is the conclusion of the Court that plaintiff mailed a proper written notice to McTeague, which complied with the statute, and although not sent by registered mail, was received by McTeague within the statutory time limit. Accordingly, judgment is ordered for the plaintiff.
Notes
. The position adopted by the above authorities is that receipt of a written notice may be proved in the same manner as any other fact. However, a pеrsuasive argument may be made that Fleisher does not so hold, since in that case receipt was admitted or at least not challenged, and accordingly upon denial of receipt by the contractor the only method of proof is by registered mail. The thesis of this contention is that the sole purpose of the statutory requirement of registered mail was to eliminate disputes upon the question of receipt where receipt is denied or challenged by foreclosing any other proof of notice. Such an argument, however, would not be consistent with a liberal сonstruction of the statute the purpose of which is achieved by interpreting the designation of registered mail as eliminating the necessity for proving receipt which otherwise would be required.