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FRANK BRISCOE COMPANY v. UNITED STATES

Nos. 9416, 9394.

396 F.2d 847 (1968)

FRANK BRISCOE COMPANY, Inc. and Maryland Casualty Company, Appellants, v. UNITED STATES of America, for the Use and Benefit of WESTERN STATES MACHINERY Co., Appellee. UNITED STATES of America, for the Use and Benefit of WESTERN STATES MACHINERY CO., Cross-Appellant, v. FRANK BRISCOE COMPANY, Inc. and Maryland Casualty Company, Cross-Appellees.

United States Court of Appeals Tenth Circuit.

July 2, 1968.

Attorney(s) appearing for the Case

Hugh J. McClearn, Denver, Colo. (Clanahan, Tanner, Downing & Knowlton, Denver, Colo., on the briefs), for appellants and cross-appellees.

Dwight K. Shellman, Denver, Colo. (Holland & Hart, and Michael J. Eigeman, Denver, Colo., on the briefs), for appellee and cross-appellant.

Before PICKETT, SETH and HICKEY, Circuit Judges.

SETH, Circuit Judge.

Western States had rented construction equipment to a subcontractor working on a Government project in Colorado, and brought this action under the Miller Act (40 U.S.C. §§ 270a, 270b) against the prime contractor and his surety for the unpaid rental. Judgment was rendered for the use plaintiff. On appeal the sole issue is whether the use plaintiff had given notice of its claim to the prime contractor within the ninety-day notice period...

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