
    CHALMETTE OIL DISTRIBUTING CO., Inc., v. CHALMETTE PETROLEUM CORPORATION.
    No. 409.
    District Court, E. D. Louisiana, New Orleans Division.
    Feb. 6, 1941.
    Ed. J. De Verges and McCloskey & Benedict, all of New Orleans, La., for plaintiff.
    Monroe & Lemann and Nicholas Callan, all of New Orleans, La., for defendant.
   CAILLOUET, District Judge.

Under Rule 56 (c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”, that a sought-for summary judgment should be rendered.

In view of the fact that there is here a genuine issue as to the material facts alleged by the defendant in and under the closing paragraphs of its answer, whereon defendant predicates its prayer that the admittedly executed agreements “be set aside and that judgment be entered requiring the plaintiff to account to defendant for all earnings and profits made by virtue” thereof, a summary judgment should not be rendered, and the motion therefor is, accordingly, Denied; but the Court,- at the same time, in view of its examination of the pleadings and of the evidence before it, and of its interrogation of Counsel, concludes that there exists no substantial controversy as to all other material allegations of fact in the pleadings, and

It is, therefore, ordered that upon such trial as may hereafter follow in due course, the sole material facts in dispute shall be only such as are so alleged by the defendant as the basis for its prayer aforecited, and none other, and each and every other material fact alleged in the pleadings and as to which there so exists no substantial controversy shall be deemed established, and the trial shall be conducted accordingly.  