Bettens

Plaintiff’s Motion For' Summary Judgment must be denied. As insisted upon by plaintiff, it is apparent from the record of this action that the controlling facts are before the Court without dispute. However, they do not spell out the result which plaintiff desires. Defendant, while-not contesting the material facts, insists that they compel a different result than plaintiff contends on his Motion For Summary Judgment. Defendant does not ask summary judgment in his favor. Therefore, the Court has but one duty and that is to rule upon plaintiff’s motion for that relief. The Court denies that motion.

■ On the first of February, 1926, plaintiff, as a surety, executed a tax abatement bond running to the United States of America. The circumstances were that defendant was at that time engaged in a dispute with the United States over a certain tax liability and in order to avoid immediate action to collect the taxes allegedly due, defendant here was required to give bond which he did, the plaintiff being surety thereon. Thereafter the tax dispute was determined in favor of the United States and plaintiff here was called upon to pay the tax liability. Plaintiff contends that it was…