R. T. Woodfield, Inc. v. Montgomery County Board of Education Ex Rel. International Telephone & Telegraph Corp.

Marbury, J., delivered the opinion of the Court. On December 2, 1966, the appellee, International Telephone and Telegraph Corporation (ITT), 1 filed suit against the ap ³⁵ pellants for money due and owing pursuant to a certain labor and material payment bond executed by appellant R. T. Wood-field, Inc. (Woodfield) as principal and the appellant National Surety Corporation (National) as surety. Suit was also filed against Wilbur R. Hansen, t/a Hansen Plumbing and Heating Company (Hansen) for money due and owing, but at the commencement of the trial the cause of action against that defendant was placed on the stet docket. Woodfield was the general contractor for the construction of the Kemp Mill Junior High School in Montgomery County, and National provided it with a labor and material payment bond naming Montgomery County Board of Education as the obligee.

Woodfield entered into a subcontract with Hansen for the plumbing, heating, ventilation and air conditioning work on the new school. Hansen, in turn, contracted with ITT on January 27, 1965, to supply certain air conditioning and ventilating equipment for that job. The total net price was $43,920.00 f.o.b. appellees’ factory in Philadelphia, Pennsylvania, with freight allowed to the freight station nearest destination. On October 26, 1965, ITT made a shipment to the job site which included five large air handling units, one of which was a “NESBIT MODEL LPC 25-VVF2-W4” as called for by the specifications.

These units are generally known as audicons, and they can be manufactured with many variations and contain the mechanisms to heat, ventilate, and after a cooling coil is added, they can also cool. One of these audicons, a vertical floor mount model, was not an item held in stock but was manufactured specifically for the Kemp Mill Junior High School. On November 1, 1965, Mr. Frederick M. Hewitt of Taze & Hewitt, Inc. (the ITT representative in the Baltimore trading area) testified that he received a telephone call from Mr. Daniel W. Johns, Hansen’s foreman and the individual who signed Hansen’s order with ITT, to the effect that one audicon unit was incorrect since it could not be mounted in the space that had been provided for by the architect. Johns further informed Hewitt that the audicon would have to be returned to the factory and the correct unit shipped in.

The Washington area representative of ITT, Mr. John O’Connor, visited the job site and determined that the unit should have been a horizontal-ceiling mount model. ³⁶ Then he called ITT in Philadelphia to determine if a field correction could be made. In order to make such a correction it was necessary to order some new material (mounting angles and vibration eliminators) and obtain a mechanic to install the new parts and perform the conversion on the job site. On January 5, 1966, Mr. Vopper, ITT’s field mechanic, went to the school where he spent three hours converting the unit from vertical-floor mount to horizontal-ceiling mount. This conversion was done at a cost to ITT of approximately $32.00 for labor and materials but none of this was billed to Hansen.

On February 16, 1966, the appellants were informed of Hansen’s failure to pay ITT the sum of $43,861.48 by copies of a letter addressed to the Montgomery County Board of Education. After receiving no satisfactory response to this letter, ITT instituted suit on December 2, 1966, upon the labor and material bond. By an amended opinion and order dated January 2, 1968, the lower court granted ITT a judgment for $43,861.48 with interest from the date of suit and costs. At trial and on appeal appellants contend that the written notice of the claim was not timely as required by Code (1964 Repl.

Vol.), Article 90, Section 11 (c). ITT has also noted a cross appeal from the judgment on the issue of interest. The bond sued upon was furnished in compliance with Article 90, Section 11 (c) which provides that persons not having a direct contractual relationship with the contractor furnishing the bond shall have a right of action upon the bond “upon giving written notice to the contractor within ninety (90) 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 . . . .” The above quoted language of the Code is similar to 40 U.S.C. Sec. 270 b (a) (1964), popularly known as the Miller Act. The main issue in this case is whether ITT gave written notice of its claim as required by the bond within ninety days after it did or performed the last of the work or labor or furnished the last of the material for which its claim is made.

Appellants raise no objections to the sufficiency of the notice other than to contend that it was not timely. ITT gave its notice of claim on February 16, 1966. It con ³⁷ tends that the time for giving such notice should be computed from January 5, 1966, when the audicon was converted from a vertical floor mounted unit to a horizontal ceiling motmted unit, and that therefore the appellants were informed of their claim within the required ninety days. The appellants argue that the time should be measured from October 26, 1965, which was the date of delivery of this unit to the job site and well beyond (he ninety day limit.

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