(dissenting).
The purpose of Rule of Civil Procedure 56(c), 28 U.S.C., authorizing entry of summary judgment is to provide against the vexation and delay which necessarily come from the formal trial of cases in which there are no substantial issues of fact. Its objective is to permit the expeditious disposition of cases of that kind. But the procedure is not to be used as a substitute for a regular trial of cases in which there are disputed issues of fact upon which the outcome of the litigation depends, and it should be invoked with due caution to the end that litigants may be afforded a trial where there exists between them bona fide disputes of material fact. Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013; Zampos v, United States Smelting, Refining & Mining Co., 10 Cir., 206 F.2d 171; S.M.S. Manufacturing Co. v. U. S. Mengel Plywoods, 10 Cir., 219 F.2d 606.
It seems clear to me that the complaint stated a justiciable cause of action; that there were bona fide issues of material fact between the parties upon which the outcome of the litigation depended; that such facts could be determined only upon a trial of the cause; and that in such circumstances the motion for summary judgment should have been denied. Accordingly, I would reverse the judgment and remand the cause for further proceedings.