Kelley

Miller & Bentley (use plaintiff), as supplier of equipment to a subcontractor on a Government project in Alaska, has brought this action under the Miller Act, 40 U.S.C. §§ 270a, 270b, against the gen *591 eral contractor and his surety for unpaid rental of the equipment supplied. Judgment for the defendants was rendered upon the ground that the use plaintiff had not given notice of its claim to the contractor within the 90-day period prescribed by the Miller Act. 1 Upon appeal the sole issue is whether the district court erred in so ruling.

The equipment involved was rented to the subcontractor by the use plaintiff, and the district court properly concluded that under such circumstances the notice period ordinarily runs from the time the equipment was last available for use on the project. United States ex rel. Carter-Schneider-Nelson, Inc. v. Campbell (9 Cir. 1961), 293 F.2d 816 , cert. denied (1962) 368 U.S. 987 , 82 S.Ct. 601 , 7 L.Ed.2d 524 .

The subcontract upon which the furnished equipment was used was terminated January 13, 1959. Use plaintiff was not notified of this fact. The. district court, however, found that as a reasonably prudent supplier it should have learned…