Opinion
No. 19843.
September 27, 1965.
J.W. Ehrlich, Edward F. Dullea, San Francisco, Cal., for appellants.
Theodore A. Kolb, Sullivan, Roche, Johnson Farraher, San Francisco, Cal., for appellee.
Before JERTBERG and DUNIWAY, Circuit Judges, and THOMPSON, District Judge.
In this Miller Act (40 U.S.C. § 270a-270d) case, the general contractor appeals from a summary judgment granted by the District Court in favor of a material supplier to a subcontractor.
There was no genuine issue with respect to the material facts on the showing made at the District Court hearing. Appellants' fairly feeble opposition to the motion in the District Court has not been much strengthened on appeal. The general contractor now cites United States for Benefit and Use of Westinghouse Supply Co. v. Robbins (1954 D.C.Mass.), 125 F. Supp. 25, for the proposition that the material supplier's affidavits were insufficient because they did not prove that the materials furnished had been incorporated into the building. It is not the law that a person who has furnished material in the prosecution of the work provided for in a contract for the construction of a public building of the United States must prove the actual use of the material in the construction work to sustain a cause of action under the Miller Act. United States for Use and Benefit of National U.S. Radiator Corp. v. D.C. Loveys Co. (D.C.Mass. 1959), 174 F. Supp. 44, aff'd on other grounds, 1 Cir., 275 F.2d 372; Fourt v. United States for Use of Westinghouse Electric Supply Co. (10 C.C.A. 1956), 235 F.2d 433; Continental Casualty Co. v. Allsop Lumber Co. (8 C.C.A. 1964), 336 F.2d 445.
Judgment affirmed.