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U. S. FOR USE & BENEFIT OF WESTINGHOUSE ELEC. CORP. v. SOMMER

No. 76-4018.

580 F.2d 179 (1978)

The UNITED STATES of America, for the Use and Benefit of WESTINGHOUSE ELECTRIC CORP., and Westinghouse Electric Corporation, Plaintiffs-Appellees, v. SOMMER CORPORATION, Defendant, and Heyl and Patterson International, Inc., and Travelers Indemnity Company, Defendants-Third-Party Plaintiffs-Appellants, First National City Bank, Third-Party Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

September 18, 1978.

Attorney(s) appearing for the Case

Strassburger & McKenna, Daniel M. Curtin, Pittsburgh, Pa., for appellants.

Gene W. Lafitte, S. Gene Fendler, Earl S. Eichin, Jr., New Orleans, La., Stephen F. Ellman, Shearman & Sterling, New York City, N.Y., for 1st Nat'l City Bank.

Before RONEY, TJOFLAT and HILL, Circuit Judges.

RONEY, Circuit Judge:

In this Miller Act suit, 40 U.S.C.A. § 270b, we affirm the district court's grant of summary judgment for a materialman against the general contractor, because the evidence is uncontradicted that the materialman was never paid for certain equipment supplied to a subcontractor for use on the Government's project. We also affirm the district court's dismissal of the general contractor's third-party suit against a bank which received a check...

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