Ziegler Chemical and Mineral Corporation, a Corporation of New York v. American Gilsonite Company, a Corporation of Delaware

Appellant instituted an action in the District Court against appellee and certain other defendants for violations of the antitrust laws, for injunctive relief, and for declaratory judgment under the patent laws. Appellee filed an answer and a counterclaim stating several claims for relief, including the two involved in this appeal. The first and second causes of action of the counterclaim sought the same relief on alternative theories of liability, and alleged in the first cause of action an account stated in the amount of $9,136.00 owing from appellant to appellee, and in the second cause of action a promise by appellant, supported by valuable consideration, to pay such amount to appellee and that appellant had not paid any part of such amount.

In answer to said causes of action in the counterclaim appellant admitted the execution of certain documents, admitted demand and non-payment, but denied generally the remaining allegations of said causes of action.

Appellee moved for summary judgment on these two causes of action under Rules 54(b) and 56, Federal Rules of Civil Procedure, which motion was supported by affidavits and exhibits attached thereto. Appellant opposed the…