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FIDELITY & DEPOSIT CO. OF MD. v. SCOTT BROTHERS CONST. CO.

No. 71-3060.

461 F.2d 640 (1972)

FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff-Appellant, v. SCOTT BROTHERS CONSTRUCTION COMPANY et al., Defendants, Alexander City Bank, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

Rehearing and Rehearing Denied August 15, 1972.

Attorney(s) appearing for the Case

James E. Clark, London, Yancey, Clark & Allen, Birmingham, Ala., for plaintiff-appellant.

Allen Poppleton, John Morrow, Birmingham, Ala., William I. Byrd, Alexander City, Ala., for defendant-appellee.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

Rehearing and Rehearing En Banc Denied August 15, 1972.

GODBOLD, Circuit Judge:

The single issue on appeal of this diversity case involves resolution of the competing claims of a surety and an assignee bank to contract progress payments made in the form of a check payable to the contractor. The check was deposited with the assignee bank just prior to the contractor's default and the surety's undertaking of the contractor's obligation to complete the construction...

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