Cumming v. United States

58 Ct. Cl. 651, 1923 U.S. Ct. Cl. LEXIS 220, 1923 WL 2181

• Court: United States Court of Claims
• Decided: November 19, 1923
• Docket: No. B-184
• Status: Published

Opinion

On November 19, 1923, the court filed the following order and memorandum:

ORDER.

This cause coming on to be heard upon the defendant’s motion for a new trial, and it appearing that upon said motion a stipulation has been entered into, made, and signed ■on the part of the plaintiffs by their attorney, Hoke Smith, and on behalf of the United States by Assistant Attorney General Robert H. Lovett, which reads as follows:

“ It is agreed between counsel for the plaintiffs and counsel for the Government that Finding of Fact X made by the court under date of November 6, 1922, should read as follows:

“ ‘ Deducting from the contract price of $379,800 a prorated sum on a basis of $10,000 per annum out of rents paid by the United States, amounting, from January 23, 1920, to November 30, 1921, to the sum of $18,568.45, there would remain a balance of the purchase price at the conclusion of the transaction on December 28, 1921, amounting to $361,231.55. There was paid to plaintiffs, and accepted by them under protest as above stated, the sum of $347,027.79, leaving a balance of $14,203.76, from which should be deducted the amount which the Government paid by agreement to the parties claiming an interest in the land, the Misses Baker, of Rome, Ga., the sum of $3,250, leaving a balance of $10,953.76.’

“ If the plaintiffs are entitled to recover, the amount of the recovery should be the sum of $10,953.76.”

On consideration whereof it is ordered that Finding X of the original findings of fact be stricken out,.vacated and withdrawn, and in lieu thereof Finding X, as stated in said stipulation, be substituted and inserted. The judgment heretofore rendered is vacated and set aside.

Amended findings of fact are this day filed in accordance with said stipulation and agreement and a new judgment is rendered for plaintiffs in the sum of $10,953.76. The former conclusion is withdrawn and a new conclusion is filed as follows:

“ Upon the foregoing findings of fact as amended the court concludes that the plaintiffs are entitled to recover, and in accordance with the stipulation it is adjudged, ordered, and decreed that the plaintiffs have and recover of and from the United States the said sum of ten thousand nine hundred and fifty-three dollars and seventy-six cents ($10,953.76).”

It is further ordered, That the opinion heretofore rendered shall stand except that at the end thereof the words and figures “ in the sum of $13,300,” are stricken out.

MEMORANDUM BT THE COURT.

The defendant made a motion for a new trial under section 175 of the Judicial Code. Before the same was heard the parties entered into the agreement set forth in the order made this day. Because of the stipulation a new trial is granted and the judgment modified.