(dissenting).
In my opinion, there is nothing to be gained by sending this case to a commissioner for trial. As the majority concedes, if the version of the defendant and the third parties is correct, plaintiff cannot recover. Nor can he recover from defendant, as distinguished from the third parties in a separate action, if his own version is correct. If he proves everything he alleges and the things set forth in the affidavits filed by him after the argument, by leave of the court, he is not entitled to recover, in my opinion.
The majority does not say he is or is not entitled to recover but they say they do not now want to decide the case until they have more facts. I say our duty on a motion for summary judgment is to decide the case on the facts presented to us, unless there is a dispute as to some material fact, the truth or falsity of which affects the decision.
If I am correct in saying that plaintiff is not entitled to recover, even though all the facts he alleges and sets forth in his affidavits are conceded, then our duty is to decide the case now. To send the case to a commissioner for trial to determine facts which if proved cannot support a recovery by plaintiff is a needless waste of time and expense, which the motion for summary judgment was designed to obviate.
Proceeding on this premise, I shall now state briefly why I do not think plaintiff is entitled to recover even on his version of the case.
First, plaintiff says the assignment of his interest in the vessel was not a sale, as it appeared to be on its face, but merely security for the performance of the agreement between him and the third parties. Suppose this is so, what was defendant’s duty? Whether a sale or security, the assignment still directed defendant to deliver the vessel to the assignee, the act of which plaintiff complains. The assignment concluded with these words:
“Accordingly, we herewith irrevocably authorize you to release and deliver Cruiser CA-31 to Union Minerals & Alloys Corporation or its authorized representative, and the above Performance Bond and Certified Check are tendered to you against delivery of Cruiser CA-31 to Union Minerals & Alloys Corporation or its authorized representative as aforesaid.”
Although the assignment did not absolutely transfer plaintiff’s rights in the vessel to the third party, but was merely security to insure performance of the agreement that the third party get the ferrous metal scrap, it still directed that the vessel be delivered to the third party. There is nothing inconsistent in this. It is done every day, the security pledged is put in the hands of the pledgee.
Plaintiff also claims the agreement between him and the third parties was can-celled, which, in some way, entitled him to receive the vessel. If the transaction was cancelled, and the defendant consented, it was its obligation to return the money to the person who had deposited it. In such event, the defendant, empty-handed, was under no obligation to deliver the vessel to anyone.
If the defendant did not consent to cancellation, but insisted on keeping the money deposited, then its obligation was to deliver the vessel according to the terms of the assignment, upon the faith of which the money had been deposited.
*733Conceding every fact plaintiff alleges and sets up in his affidavits, I do not see how he can possibly recover. If this is so, the case should not be sent to a commissioner, but should be decided here and now.