9 Ct. Cl. 133 | Ct. Cl. | 1873
delivered the opinion of the court:
The counsel for the claimant is in error as to his statement, upon the argument of this, motion, that the ground upon which the court rendered judgment against his client was not taken by the defendants at the trial. On the contrary, a large part of
It is true that the brief of the Government does not use the legal term “ estoppelbut it states, as a defense, the facts which constitute the estoppel, and then it takes the precise ground of an estoppel, namely : “ That in good conscience this claim should not be pressed and adds: “ These views are relied upon to dispose of the whole case.”
Nevertheless, it is brought to our attention that the letter out of which the estoppel arises, before alluded to, was not properly in evidence, nor in any manner shown to have been brought home to the claimant. It was, therefore, error in the court to award judgment against the claimant, based almost entirely upon that letter, his supposed receipt of it, and his implied acquiescence in its terms. The error grew out of the fact that the letter was allowed to creep into and remain upon the face of the printed record, and to form the staple of a large part of the defendants’ written argument, without notice, or comment, or explanation, or objection on the part of the claimant. Ordinarily a party thus acting could only obtain relief on the strictest terms; but in this court, where costs are not allowed, the party’s loss of interest, should he ever recover, must be regarded as his penalty for his laches.
The order of the court is, that the judgment entered in this case, on the 28th day of April, 1873, be vacated and set aside, and that a new trial be granted.