237 F.2d 875 (10th Cir. 1956), 5403, Central States Corp. v. Trinity Universal Ins. Co.

Docket Nº:5403.
Citation:237 F.2d 875
Party Name:CENTRAL STATES CORPORATION, Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
Case Date:October 06, 1956
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 875

237 F.2d 875 (10th Cir. 1956)

CENTRAL STATES CORPORATION, Appellant,

v.

TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.

No. 5403.

United States Court of Appeals, Tenth Circuit.

October 6, 1956

         Samuel Morgan, Chicago, Ill. (Kahrs & Nelson, Wichita, Kan., on the brief), for appellant.

         Gerrit H. Wormhoudt, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Wayne Coulson, Paul R. Kitch, Dale M. Stucky and Donald R. Newkirk, Wichita, Kan., on the brief), for appellee.

         Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

         PHILLIPS, Circuit Judge.

         On August 4, 1951, Trinity Universal Insurance Company 1 issued a State of

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Kansas Grain Public Warehouse Bond in the principal amount of $130,000, covering the operation by the Garden Grain and Seed Company 2 of grain elevators as public warehouses at Garden City, Kansas Air Base and Pierceville, Kansas. On October 30, 1951, the Insurance Company issued a like bond in the principal amount of $5,000, covering the operation by the Seed Company of an elevator as a public warehouse, at Ingalls, Kansas.

         The Insurance Company brought an action of interpleader against Central States Corporation 3 and others who asserted claims against it under its bonds, asking a determination of its liabilities under the bonds to such claimants.

         Central filed an answer in which it sought recovery on the $130,000 bond, on account of certain unregistered warehouse receipts issued to it by the Seed Company. In its answer Central alleged that on November 29, 1951, it purchased from the Seed Company 50,000 bushels of No. 2 milo at $2.35 cwt. and paid therefor the sum of $65,800 and that as a part of the same transaction the Seed Company on the same day issued to it ten unregistered public warehouse receipts, numbered 164 to 173, inclusive, in the form prescribed and authorized by the law of Kansas. Central further alleged that on December 15, 1951, it purchased from the Seed Company 50,000 bushels of No. 2 yellow milo at $2.46 cwt. and paid therefor the sum of $68,800, and that as a part of such transaction the Seed Company on the same day issued to Central ten unregistered public warehouse receipts, numbered 179 to 188, inclusive, in the form provided by the law of Kansas.

         Such unregistered receipts recited that the Grain Company had received in storage from Central a designated number of bushels of milo, subject to the order of Central. Each of the receipts also contained the following recital:

         'The undersigned warehouseman is not the owner of the grain covered by this receipt, either solely, jointly or in common with others: * * *.'

         Central further alleged that the amount paid by it to the Seed Company for milo represented by such receipts, after giving full credit for milo delivered to it by the Seed Company, is $220,875.71 and sought recovery on the $130,000 bond for the full amount thereof.

         The trial court granted a summary judgment in favor of the Insurance Company. Central has appealed.

         At the hearing on the motion for summary judgment Central filed an affidavit of defense. It attached to such affidavit a transcript of the testimony of A. P. Emrie, Chief Grain Inspector of the State of Kansas, given in...

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