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BANK OF AUBURN v. UNITED STATES FIDELITY & GUARANTY CO.

No. 18884.

295 F.2d 641 (1961)

BANK OF AUBURN, Appellant, v. UNITED STATES FIDELITY & GUARANTY CO., Appellee.

United States Court of Appeals Fifth Circuit.

October 31, 1961.

Attorney(s) appearing for the Case

Knox M. McMillan, Auburn, Ala., Brown & McMillan, Roberts H. Brown, Opelika, Ala., for appellant.

Charles Stakely, Jr., Rushton, Stakely & Johnston, Watkins C. Johnston, Montgomery, Ala., for appellee.

Before RIVES, CAMERON and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment sustaining a motion to dismiss an amended complaint based on a contractor's "Performance and Payment Bond." The Bank of Auburn sought to recover $11,519.21 loaned by it to the contractor for the purpose of paying for labor and materials used in carrying out the contract and actually so used by the contractor. The Bank claimed that this was a "* * * debt incurred [by the contractor] in or about the performance of...

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