Transamerica Insurance

197 Ct. Cl. 1073, 1971 WL 4169

• Court: United States Court of Claims
• Decided: October 15, 1971
• Docket: No. 79-71
• Status: Published

Opinion

Contracts; sureties, rights of. — Plaintiff is surety company which issued payment and performance bonds pursuant to the Miller Act to a contractor which entered into various construction contracts with defendant. During performance of the contracted work plaintiff advanced sums of money to the contractor and in consideration of such advances the contractor notified defendant to forward future payments to it in care of plaintiff-surety at the address set forth in the notification, which notification stated that it was not a notice of assignment but simply a change of mailing address. Thereafter defendant made payment or payments to the contractor of moneys due at an address different from that designated in said notification. Defendant contends, inter alia, that plaintiff’s petition does not allege that it gave any notice whatsoever to defendant that it considered itself entitled to all proceeds earned under the contract, and not to make any further payments to the contractor. This case comes before the court on defendant’s motion to dismiss the petition. Upon consideration thereof, together with the response in opposition thereto, without oral argument, the court concludes that plaintiff has failed to state a claim upon which relief can 'be granted. See Home Indemnity Co. v. United States, 180 Ct. Cl. 173, 180, 376 F. 2d 890, 894-95 (1967). On May 28, 1971 the court, by order, granted defendant’s motion and dismissed the petition. On October 15, 1971 the court denied plaintiff’s motion for reconsideration and for oral argument.