100 F.2d 405 | 2d Cir. | 1938
We had assumed that the parties were content to have the merits decided upon this record. The plaintiff objects, however, to a summary conclusion, and it is entitled to require the defendant to file an answer and to have the cause stand for trial or other disposition according to the Rules of Civil Procedure. Our mandate will therefore be modified so as to reverse the judgment and to direct the defendant to file such answer as he may desire within ten days after an order is entered in the district' court. The district court will thereupon deal with the issues raised in due form under the rules. The plaintiff has apparently misunderstood our opinion. We did not hold that the Commissioner had “waived” interests, if by “waiver” is meant any conscious surrender; but we did hold that the acceptance of the principal, certainly when made without reservation, forfeited any right to interest. Thus the only “factual support” necessary to the supposititious “waiver” was that the parties understood that the payments were applicable to the installments and that the right to interest was not reserved at the time of their acceptance. So much alone, so far as we can now see, will be debatable in the district court.
