Hanney

This suit involves the interpretation of a “Builders’ Risk” policy (Form 50 — amended) pertaining to a halibut boat. On a former appeal we held the policy ambiguous in respect of the coverage afforded by it and reversed a judgment dismissing the complaint. Hanney v. Franklin Fire Insurance Co., 9 Cir., 142 F.2d 864 .

After remand the defendant, appellant here, made a request for admissions under Rule 36, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c in response to which the plaintiffs admitted that a certain instrument attached to the request was a true copy of the agreement made between plaintiffs and a third party1 for the construction of the boat. In their response plaintiffs stated that full performance of that agreement did not require that any of the property lost by fire be acquired for or used in the construction of the boat. Defendant then amended its answer and moved for summary judgment under the provisions of Rule 56. The motion was denied; and upon the trial which ensued there was a verdict and judgment, in favor of the plaintiffs.

Appellant does not attack this judgment.. It contends merely that its motion for summary judgment should have…