Walling v. Richmond Screw Anchor Co.

FRANK, Circuit Judge.

1. It does not follow that, merely because each side moves for a summary judgment, there is no issue of material fact. For, although a defendant may, on his own motion, assert that, accepting his legal theory, the facts are undisputed, he may be able and should always be allowed to show that, if plaintiff’s legal theory be adopted, a genuine dispute as to a material fact exists. As judgment here was ,on plaintiff’s motion, we must therefore decide whether, adopting its legal theory, there was no such dispute. We are satisfied there was none.

2. We take it as admitted that…