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COTO-MATIC, INC. v. HOME INDEMNITY COMPANY

No. 7874.

354 F.2d 720 (1965)

COTO-MATIC, INC., Appellant, v. The HOME INDEMNITY COMPANY and Harry Keener, Trustee in Bankruptcy for Industrial Engineer Co., Inc., Appellees.

United States Court of Appeals Tenth Circuit.

Rehearing Denied January 5, 1966.

Attorney(s) appearing for the Case

Richard C. Hite, Wichita, Kan. (W. A. Kahrs, Robert H. Nelson, H. W. Fanning, Darrell D. Kellogg and Roger Sherwood, Wichita, Kan., on the brief), for appellant.

Paul Scott Kelly, Jr., Kansas City, Mo., (John Murphy, Kansas City, Mo., Lyndon Gamelson and Donald C. Tinker, Jr., Wichita, Kan., for appellee Home Indemnity Co.; Charles Anderson, Wichita, Kan., for intervenor-appellee, Harry Keener; Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, Mo., Gamelson, Robbins & Tinker and Anderson, Clark & Appling, Wichita, Kan., of counsel, were on the brief), for appellees.

Before PHILLIPS, LEWIS and BREITENSTEIN, Circuit Judges.

DAVID T. LEWIS, Circuit Judge.

This diversity action was filed in the District of Kansas by the appellant-plaintiff to recover upon a performance bond furnished by the defendant Home Indemnity Company as surety for Industrial Engineering Co., Inc. (Industrial) upon allegations that Industrial had breached a written contract for the fabrication of a metal painting machine. The appellee Keener was permitted to intervene in his capacity as trustee in bankruptcy for Industrial...

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