Goldenberg v. Village of Capitan

Since it is an indisputable fact in the record of this and the former appeal that defendant treated plaintiffs entry on active duty in the navy as automatically canceling his contract, he was not called upon under the naval regulation in question to seek authority to perform services never tendered him. Restatement of the Law of Contracts, 306. Nevertheless, the prevailing opinion proceeds to overturn a favorable judgment recovered by him following reversal and remand on the former appeal on account of a naval regulation noticed by the court of its own motion in considering that appeal. Such an effect could only properly follow denial by Bureau of Naval Personnel of an application to it under the regulation for authority to perform services never tendered plaintiff because of defendants unwarranted contention that his contract was canceled when called to active duty in the navy.