636 F2d 230 Winters Government Securities Corporation v. First National Bank of Breckenridge H

636 F.2d 230

WINTERS GOVERNMENT SECURITIES CORPORATION, a Florida
Corporation, Appellant,
v.
FIRST NATIONAL BANK OF BRECKENRIDGE, a National Banking
Association, and H. Robert Hertzenberg,
Individually, Appellees.

No. 80-1309.

United States Court of Appeals, Eighth Circuit.

Submitted Dec. 10, 1980.
Decided Dec. 22, 1980.

Nolan P. Chipman, Paul, Landy, Beiley & Harper, Miami, Fla., Jeremiah J. Kearney, O'Connor & Hannan, Minneapolis, Minn., for appellant, Winters Government Securities Corp.

Samuel L. Hanson, Briggs & Morgan, Minneapolis, Minn., for appellee First Nat. Bank of Breckenridge.

Before LAY, Chief Judge, ROSS and McMILLIAN, Circuit Judges.

PER CURIAM.

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1

Winters Government Securities Corporation, plaintiff, alleged in its complaint that defendant First National Bank of Breckenridge contracted to purchase four Government National Mortgage Association (GNMA) futures from plaintiff and then refused to accept delivery of them. First National answered that a salesman employed by the plaintiff had traded on the bank's account without its authorization and contrary to its specific instructions to the salesman. Therefore, according to the bank, its refusal to accept delivery was justified.

2

Following a trial to the court, Chief Judge Edward J. Devitt held that the plaintiff had "not proved its claims by the preponderance of the evidence," and that he "view(ed) defendant's version of the facts to be more plausible." Judgment was thus entered for First National.

3

We have carefully considered the arguments of the parties on appeal and have studied the record before us. We agree with Judge Devitt's decision in this case and, accordingly, we affirm on the basis of his well reasoned opinion pursuant to Rule 14 of the Rules of this court.