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UNITED STATES v. KELLEY

No. 26490.

456 F.2d 148 (1972)

UNITED STATES, for the Use of POMONA TILE MANUFACTURING COMPANY, a corporation, Plaintiffs-Appellees, v. David L. KELLEY d/b/a David Kelley Tile Company, a sole proprietorship, et al., Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

February 23, 1972.

Attorney(s) appearing for the Case

Douglas B. Jensen, of Miller, Groezinger, Pettit & Evers, San Francisco, Cal., for defendants-appellants.

Douglas K. Wallace, of Wallace, Brown & Crain, Newport Beach, Cal., Mc-Cormick & Williams, Los Angeles, Cal., for plaintiffs-appellees.

Before MERRILL, BROWNING and WRIGHT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Pomona Tile, which furnished tile and supplies to a subcontractor on a government project at Fort Ord, California, sought recovery under the Miller Act (40 U.S.C. § 270b) for unpaid material bills. Pomona took a default judgment against David Kelley, the subcontractor. The prime contractor, Jay De Construction Co., raised defenses of (1) noncompliance with the Act's 90-day notice requirement, (2) partial payment, and (3) diversion...

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