text:
    The UNITED STATES v. The FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al.
    Appeal No. 2-73.
    United States Court of Claims.
    July 13, 1973.
    I. S. Weissbrodt, Washington, D. C., attorney of record, for appellees. Richmond F. Allan, Billings, Mont., of counsel.
    Dean K. Dunsmore, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KUN-ZIG and BENNETT, Judges.
   PER CURIAM:

This case comes before the court on the appellee-plaintiffs’ motion to dismiss the appeal of the defendant. Resolution of the issue involved in this case rests on the interpretation to be given section 20(b) of the Indian Claims Commission Act, 60 Stat. 1049, 1054, now 25 U.S.C. § 70s(b), dealing with the appealability of interlocutory orders of the Indian Claims Commission (ICC). The court has considered the case, without oral argument, upon the authorities and contentions presented in the motion, the response thereto and reply. It is concluded that the standards set by statute defining which interlocutory orders are appealable have not been met by the orders now the object of the appellant-defendant’s appeal, necessitating, thus, the granting of the appellees’ motion to dismiss.

On September 13, 1972, the ICC issued an opinion implementing an order in which it granted the plaintiffs’ motion to separate the claims raised in Docket No. 182 into two groups. The “group A claims” dealt with the removal of certain resources and the use of Indian lands prior to the date of taking. The “group B claims” called for an accounting of the appellant-defendant’s handling of the plaintiffs’ land and property while they were prisoners of war on the Fort Sill Reservation. The defendant filed a motion for rehearing of the Commission’s order allowing the separation of the Docket No. 182 claims, which was denied on October 18, 1972.

Thereafter, the appellant-defendant filed a motion to dismiss the group B claims in which it presented five grounds for the dismissal: (1) Lack of subject matter jurisdiction; (2) failure to state a claim upon which relief can be granted; (3) statute of limitations; (4) res judicata; and (5) the doctrine against splitting a cause of action. In an opinion issued on November 29, 1972, the Commission denied the appellant-defendant’s motion to dismiss the group B claims, and allowed the appellee-plaintiffs to amend their petition on February 27, 1973, the appellant filed its appeal in this court seeking review of both the September 13, 1972, and November 29, 1972, determinations of the Commission.

The Indian Claims Commission Act, 25 U.S.C. § 70s(b), defines those decisions of the ICC which may be appealed to this court. In pertinent part, that section states:

* * * In similar manner and with like effect either party may appeal to the Court of Claims from any interlocutory determination by the Commission establishing the liability of the United States notwithstanding such determination is not for any reason whatever final as to the amount of recovery; * * *. [Emphasis added.]

The focus of the case now before the court is whether these orders of the ICC (particularly the order announced on November 29, 1972) were determinations “establishing the liability of the United States.” If they were not, the appellant-defendant must clearly wait until such determinations are made, or until a final decision is reached on the case as a whole, for its appeal to be timely.

I. APPEALABILITY OF THE NOVEMBER 29, 1972 ORDER

The appellant-defendant admits that the November 29, 1972 order did not establish the liability of the United States in the traditional sense of the word “liability” but argues that said order “was directed to matters of law which go to liability," such as jurisdiction. It further contends that liability can only be shown where Indian title to the land is demonstrated and where unconscionable consideration was paid for such land. Yet, the Court of Claims in cases such as Sac & Fox Tribe v. United States, 315 F.2d 896, 161 Ct.Cl. 189, cert denied, 375 U.S. 921, 84 S.Ct. 226, 11 L.Ed.2d 165 (1963), and Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 161 Ct.Cl. 258 (1963), has heard appeals from interlocutory orders of the ICC where only the issue of Indian title was decided adversely to the Government, leaving open the issue of valuation. Appellant concludes from this that the term “liability” found in 25 U.S.C. § 70s(b) must be defined broadly. The plaintiffs, of course, press for a stricter interpretation.

The interlocutory appeal portion of 25 U.S.C. § 70s was added to the Act in 1960 as the result of appropriation hearings before the Congress. At that time the Department of Justice was seeking a $500,000 appropriation to cover the costs of appraising aboriginal lands in California after the Commission had found that the Indians of California had valid title to lands for which they received no compensation. Rather than pay for the appraisal while there was still a chance that it would become unnecessary if the Government were later to successfully appeal the liability portion of the Commission’s decision, the Congress made it possible for either party to appeal interlocutory orders of the Commission wherein the United States is found liable. As the Sac & Fox and Minnesota Chippewa cases make clear, this court has not strictly defined the terms of 25 U.S.C. § 70s, at least in cases in which the Commission has already dealt with the issue of Indian title. The Department of Justice would like to see the money-saving purpose of this section extended to cases like the one now at issue where the Commission has ruled adversely to the defendant on issues of law (such as jurisdiction, statute of limitations, etc.) which could be dispositive of the case as a whole since they go to the ultimate issue of liability.

Anytime interlocutory appeals are permitted, the possibility exists for the saving of the time and expense of unnecessary litigation, but still at a definite cost. That cost is the recurring interruption of the trial proceedings, an evil sought to be avoided by the finality doctrine. The 1960 addition to the Indian Claims Commission Act made a clear exception to the finality doctrine in force up to that time. The issue now is how large an exception it made and whether it will accommodate defendant-appellant’s present contentions.

It is understandable that the appellant wishes to avoid the expense that would result from the accounting called for by the group B claims, where it still feels it has viable threshold defenses (jurisdiction, statute of limitations, etc.) that are reviewable on appeal. The major problem created by the appellant’s position is that it just does not fit the statutory language. Disposition of a motion questioning The jurisdiction of the ICC would not reach the issue of the liability on the merits. In cases like Minnesota Chippewa, where the ICC decision has settled the issue of Indian title, while leaving open the valuation issue, it is easier to see the decision as one establishing liability and that is the way Congress apparently saw it. For the appellant to use cases like Minnesota Chippewa as an example of the flexible definition which the word “liability” has been given, and then use this to justify a still further extension of the already liberal definition, carries a good thing too far.

The legislative history which accompanies the 1960 change to § 70s(b) is, admittedly, narrow in its scope. For example, S.Rep.No.1925, 86th Cong., 2d Sess. (1960), states at page 17: “The amendment covers only those interlocutory orders establishing liability of the United States and is not intended to allow appeals from routine or procedural rulings of the Indian Claims Commission preliminary to such determinations of liability.” Is the denial of a motion to dismiss, presenting threshold problems, a routine or procedural ruling ?

Congress may not have considered the variety of determinations the ICC can enter when it used the language it did to identify those interlocutory orders which were intended to be appealable. Not all possible cases are so clear-cut on the issue of liability as the California Indian case, Thompson v. United States, 8 Ind. Cl.Comm. 1 (1959), which was the basis for the action of Congress in amending 25 U.S.C. § 70s (b). There, the ICC was able to determine liability clearly because it found the Indians had title; the Government took the title and extinguished it and paid no compensation therefor. All that could be left when that determination on liability became final was to make the valuation. Under its Rule 22(f)(1) and the statute, the ICC proceeds first on liability. In the usual case, valuation follows and then a determination of offsets, if any. The typical case thus has three stages. What the amended statute perhaps did not anticipate is the situation where title in Indians may be established, but there is no finding that it was taken or extinguished, which would establish liability, as in Thompson. In Sac & Fox and Minnesota Chippewa, the issue of the effect of the 1960 amendment to 25 U.S.C. § 70s(b) was not before the court and was not decided. Our instant case is one of these mutations that runs afoul of the statute that says interlocutory appeals from the ICC can only be had from a Commission determination establishing the liability of the United States. An appeal from the denial to dismiss group B claims does not lie now because liability hinges on the results of an accounting for the mishandling of Indian assets and upon determination of what beneficial interests, if any, the Indians were granted in lands of the Fort Sill Reservation. Therefore, reliance on cases where the impact of statutory requirement for liability as a basis for interlocutory appeal was not in issue, or on cases allowing interlocutory challenge after a determination of title and title extinguishment, which establishes liability, cannot be a precedent for the instant problem which appellant seeks to resolve with its collateral attack. Appellant argues, of course, that if its defenses to jurisdiction, etc., are valid, the liability issue is disposed of effectively. This, as noted above, does not reach the liability issue on the merits thereof. True, the dismissal of a threshold defense, or allowance thereof, seems to be more than a routine ruling but it does not determine liability and in this context is procedural. For the court to draw the line where appellant now would like to see it would seem to require the court to engage in judicial legislation rather than statutory interpretation.

We conclude, in the absence of compelling legislative history indicating that the court should read something into the language of section 70s(b) which is not otherwise apparent, that the. appeal, challenged by appellees’ motion to dismiss it, seeks review of an interlocutory ICC determination not covered by the interlocutory appeal provision of section 70s(b). Review of the determination of the Commission must await either a decision clearly establishing the liability of the United States or a final decision on the case as a whole. For these reasons, the appeal with respect to the November 29, 1972 determination of the ICC is untimely.

II. APPEALABILITY OF THE SEPTEMBER 13, 1972 ORDER

The September 13 order merely granted the motion of the appellee-plaintiffs to separate the Docket No. 182 claims into groups A and B. Such a determination clearly is a “routine or procedur-, al” ruling from which an interlocutory appeal does not lie by any stretch of the language of section 70s. All of the preceding discussion applicable to the November 29, 1972 determination likewise covers the September 13 opinion and order. Appellant-defendant concedes that appealability of the September 13, 1972 order depends on successful challenge to the Commission’s order of November 29, 1972. Challenge to the latter having been found unsupportable, the challenge to the September 13 order is moot.

In addition, however, section 70s requires that proper interlocutory appeals be taken within 3 months of the date of the determination. Even if October 18, 1972, the date on which the ICC denied the defendant’s motion to rehear the issue decided on September 13, 1972, is used to start the running of the 3-month appeal period, the defendant’s appeal, filed on February 27, 1973, was still too late, at least with respect to the September 13, 1972 determination.

For both of these reasons, it is concluded that the appeal of the September 13, 1972 determination is not well taken.

The appellees’ motion to dismiss the appeal with respect to both the September 13, 1972 and November 29, 1972 orders is granted and the appeal is dismissed.

      . 28 Ind.Cl.Comm. 433, 452 (1972).

      . This claim was considered by the court on a procedural issue in United States v. The Fort Sill Apache Tribe of Oklahoma, 480, F.2d 819, 202 Ct.Cl.-- (1973).

      . 29 Ind.Cl.Comm. 126 (1972).

      . 29 Incl.Cl.Comm. 188 (1972).

      . 25 U.S.C. § 70s (a) provides that the Commission may certify to the Court of Claims any definite and distinct questions of law concerning which instructions are desired for the proper disposition of a claim.

      . 74 Stat. 829 (1960).

      . Thompson v. United States, 8 Ind.Cl. Comm. 1 (1959).


source: Caselaw Access Project

author: PER CURIAM: SPECTOR, Commissioner:

license: Public Domain

text:
    GREAT AMERICAN INSURANCE COMPANY v. The UNITED STATES, and Bank of America National Trust and Savings Association, Third-Party Defendant.
    No. 249-67.
    United States Court of Claims.
    July 13, 1973.

      Edward Gallagher, Washington, D. C., attorney of record, for plaintiff.
    Leslie H. Wiesenfelder, with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant.
    Edgar H. Brenner, Washington, D. C., attorney of record, for third-party defendant. James A. Dobkin and Arnold & Porter, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This ease comes before the court on exceptions by the third-party defendant to a recommended decision filed January 18, 1973, by Trial Commissioner Louis Spector pursuant to Rule 134(h). No exceptions were filed by defendant. The court. has considered the case on the briefs and oral argument of counsel for plaintiff and the third-party defendant. Since the court agrees with the trial commissioner’s decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is entitled to recover the contract balance in the sum of $52,000.-74 and judgment is accordingly entered for plaintiff in that amount.

OPINION OF COMMISSIONER

SPECTOR, Commissioner:

This case has been before the court on two prior occasions, and is now ripe for decision on the merits. The first opinion was occasioned by motion of the third party defendant, Bank of America (hereinafter the Bank), to dismiss or stay proceedings as to it on the ground that the court lacked jurisdiction to summon the Bank to appear and assert and defend its interest in the suit. The motion was denied in an opinion which affords a prelude for this consideration on the merits. In its opinion the court set forth certain “facts essential to the disposition of the motion [which] are not in dispute.” This recitation of the facts has been confirmed by the trial which followed. They are hereinafter quoted from that opinion in the interest of continuity, and because defendant’s brief now appears in some minor instances to disavow them.

In January 1956 [1965], a joint venture known as “James L. Wennermark d/b/a Wennermark Co. & Emmett J. Harris” contracted with the Department of the Interior for construction work on a levee extension. Plaintiff was the Miller Act (40 U.S. C. § 270a et seq. (1964)) surety for the joint venture, and when it defaulted on the contract on July 29, 1965, plaintiff effected the completion of the contract work as required by its bond.
The present dispute centers around a check for $52,000.74 issued by defendant on June 7, 1965, payable to the order of the joint venture in the name “Wennermark Co. and Emmett J. Harris,” in partial payment of work performed on the contract. The check was endorsed and negotiated at the Highland Branch of the Bank of America, San Bernardino, California. Precisely who endorsed, the check, who negotiated it at the bank, and what authority he had to do so, are among the key factual issues which are to be decided later and are not now before us. [Emphasis supplied.]
On June 17, 1965, at the request of the joint venture and the attorney for plaintiff, the Treasurer of the United States ordered payment stopped on the check. When the Bank forwarded the check for payment, it was returned with a notation that payment had been stopped at the request of the joint venture. On July 7, 1965, the joint venture filed a claim against defendant for the proceeds of the check. On August 3, 1965, subsequent to the default of the joint venture on its contract, Emmett J. Harris executed an assignment of his interest in the proceeds of the check to plaintiff. On April 12, 1967, James L. Wennermark, on behalf of Wennermark Company and Emmett J. Harris assigned to plaintiff all right, title and interest in any claims they might have against E. F. Wennermark and his wife arising out of the check of $52,000.74, which check, according to the assignment, had been wrongfully and without authority converted and the proceeds disposed of by E. F. Wennermark and his wife.
On October 22, 1965, Bank of America wrote to the Treasurer of the United States requesting that payment of the proceeds of the check be made to it. The Treasury Department replied that the check would not be paid until a court of competent jurisdiction made a determination “establishing the party entitled.”
Plaintiff sued the defendant in this court, alleging that as the contractor’s surety, it had completed the contract and paid the creditors of the joint venture pursuant to the surety’s performance and payment bond at a total expense of $91,319.16. Plaintiff further alleges that it thereby acquired equitable rights to the $52,000.74 held by the defendant as the unpaid balance due on the contract, and that plaintiff’s rights to the fund are superior to the rights of any other party. * * * We hold that our jurisdiction extends to the claim asserted by plaintiff against defendant and, further, that we have jurisdiction to determine whether the plaintiff or the Bank is entitled to recover the contract balance now held by the defendant. * * * Plaintiff’s petition plainly states a cause of action for recovery of a contract balance now held by the Government in a stakeholder capacity. * * * [Emphasis supplied.]

The second occasion on which this case was before the court followed the Bank’s motion and plaintiff’s cross-motion for summary judgment. Following oral argument, the court found “that there are material issues of fact with respect to the liability of defendant to plaintiff or the third party and with respect to whether plaintiff or the third party has a superior right to the fund held by defendant.” The motions were denied and the case “remanded to the trial commissioner, for trial or other disposition of all issues of fact, including the amount, if any, which plaintiff or the third party is entitled to recover * * * ”

The facts upon which these issues hinge are as follows: One of the two joint venturers (James L. Wennermark d/b/a Wennermark Company) had a confused and obscure background. In 1960 or 1961, James L. (Leroy) Wennermark, in his own name, applied for and was issued a State of California contractor’s license to do business as Wennermark Company. During this same period, James L. Wennermark executed a general power of attorney to his father, Elmer Floyd Wennermark, which authorized E. F. Wennermark, among, other things, “to make, do, and transact all and every kind of business of what nature or kind soever” in James L. Wennermark’s name. At the time of the trial, James L. Wennermark had no personal independent recollection of having signed the power of attorney. Only after much hesitation did he identify the signature on the power of attorney as his own. There is no reliable proof that the power of attorney was ever placed on file with any third party.

The elder Wennermark, E. F. Wennermark, was sometimes known as “Jim” Wennermark by his friends and associates. He was not, ■ however, ever known as “James L. Wennermark.” E. F. Wennermark obtained the power of attorney from his son because he had been adjudicated a bankrupt in 1951 or 1952 and, in the State of California, this barred him from procuring a license to engage in the construction business.

James L. Wennermark first became associated in business with his father in January 1962 when he went to work for a joint venture comprised of the Wennermark Company and one Ralph B. Slaughter. Later, in December 1964, the joint venture involved in this case was formed and designated Wennermark Company & Emmett J. Harris. No written joint venture agreement was offered in evidence. No reliable testimony was given as to the terms of the agreement, other than the testimony of Emmett Harris that “[w]e had something we put down in writing, what each piece of equipment would receive per month for the job.” E. F. Wennermark negotiated the joint venture agreement with Emmett Harris. At the time of the formation of the joint venture, Harris believed the elder Wennermark to be the owner of Wennermark Company, and only subsequently did Harris learn that the company’s license to do business was in the younger Wennermark’s name, i. e., James L. Wennermark d/b/a Wennermark Company.

Both Emmett Harris and E. F. Wennermark contributed $1,000 or $2,000 to the joint venture. In addition, Harris contributed several trucks and a bulldozer, and E. F. Wennermark contributed a loader and bulldozer. Insofar as can be determined, the profits of the joint venture were to be shared 50 percent each between Emmett Harris and E. F. Wennermark. James L. Wennermark did not directly share in the profits or losses of the business. According to the testimony, the younger Wennermark was “paid on different methods at different times.” He “generally drew — took a draw against the company.”

The joint venture bid on the Government contract here involved was signed “James L. Wennermark” by E. F. Wennermark. A bid supplement was also submitted and signed “James L. Wennermark-(Partner)” by E. F. Wennermark. The bid bond submitted with the bid was signed by both E. F. Wennermark and Emmett J. Harris, the elder Wennermark signing the name “James L. Wennermark.” Harris and the elder Wennermark had apparently prepared the bid. The contract with the Department of the Interior was executed for the joint venture by E. F. Wennermark, signing “James L. Wennermark, Partner.” E. F. Wennermark also signed the name “James L. Wennermark” to the performance bond and to the payment bond.

However, E. F. Wennermark’s responsibilities with respect to the joint venture of Wennermark Company & Emmett J. Harris, and specifically with respect to this contract, appear to have been ministerial in nature for the most part. Any activity on the part of E. F. Wennermark during contract performance was largely confined to the joint venture office in San Bernardino. Even this activity was of a limited nature. The office work was performed by the joint venture secretary, Mrs. Norma Miller. She did all the bookkeeping, made out the payroll checks and accounts payable, handcarried and deposited the first four progress payment cheeks in the joint venture checking account, and performed all the general secretarial activities for the joint venture. The elder Wennermark’s responsibilities at the office were largely confined to opening the mail and handing the bills to Mrs. Miller for filing and payment. The elder Wennermark was absent from the joint venture office 2 or 3 days a week; his absences were unexplained and his whereabouts during these periods unknown. It also appears from the testimony that the elder Wennermark performed the ministerial act of signing the name “James L. Wennermark” as drawee to joint venture cheeks and to the first, second, third, and fifth “Contract Summary (Construction) and Voucher.”

The record does reveal, on the other hand, that the elder Wennermark did arrange two loans from the Security First National Bank to the joint venture. Promissory notes were executed in conjunction with the loans. One note dated May 14, 1965, in the name of “WENNERMARK & HARRIS (a joint venture)” was signed by.,E. F. Wennermark in the name “James Wennermark, J. V. Partner.” Another note executed May 24, 1965, in the name of “WENNERMARK CO. AND HARIS [sic], a’ Joint Venture” was signed “James L. Wennermark” by E. F. Wennermark. A third loan, unrelated to the other two, and issued to Wennermark Company alone, was evidenced by a note dated May 14, 1965, and signed “James L. Wennermark” by E. F. Wennermark.

In connection with the two aforementioned loans to the joint venture, a “Certification of Partnership” was executed on May 15, 1965, by Emmett J. Harris and E. F. Wennermark, the latter signing the name of his son, James L. Wennermark. The certificate provided in part:

The undersigned, James L. Wennermark and Emmett J. Harris, hereby certify:
1. That they are all of the general partners of Wennermark Company & Emmett J. Harris — joint venture, a partnership existing under the laws of the State of California, and that there are no limited partners. [Emphasis supplied.]

Also in connection with those loans, and any future loans to the joint venture, Emmett J. Harris executed a continuing personal guarantee, pledging his personal credit for loans made to the joint venture.

Harris and the younger Wennermark conducted the actual field operations required for contract performance. The location of the work was partly in California where the rock to build the levee was blasted and loaded onto trucks, and partly in Arizona where the rock was put in place. Emmett Harris handled the quarrying end of the work in the field, which included supervision of the drilling, shooting, loading, and hauling. The younger Wennermark was in charge of the portion of the field work in Yuma, Arizona. He supervised the placing of the rock at the levee. Harris and the younger Wennermark both purchased materials and supplies and contracted for repair work when needed on the equipment. Both procured rental equipment when needed. Bills for supplies were approved by either the younger Wennermark or Harris prior to payment. The younger Wennermark prepared the payrolls for transmission to the joint venture office in San Bernardino, California. The younger Wennermark hired new men when they were needed. The younger Wennermark and Emmett Harris prepared the detail for the “Contract Summary (Construction) and Voucher” forms which served as the basis for progress payment checks of the type involved in this case. The Government’s construction engineer testified that he also dealt with E. F. Wennermark on occasion.

The joint venture of Wennermark Company & Emmett J. Harris maintained its checking account at the Security First National Bank in San Bernadino, California. There was no joint venture account at the Bank of America, Highland Branch (the third party herein) where the check involved in this litigation was endorsed and negotiated. The Wennermark Company, one of the joint venturers, did maintain a checking account at the Bank of America, Highland Branch.

The signature card of the joint venture checking account at Security First National was signed both by Emmett J. Harris and E. F. Wennermark, the latter signing the name “James L. Wennermark.” The signature card read as follows:

The undersigned are all of the general partners of the business known as Wennermark & Harris under which name the bank account represented by this signature card is maintained. The undersigned hereby authorize James L. Wennermark and Emmett J. Harris, whose signatures appear on the reverse hereof, any two acting together, to make withdrawals from said account and to endorse for encashment checks and other items payable to or belonging to said business. * * * [Emphasis supplied.]

To make withdrawals from the joint venture checking account at Security First National, E. F. Wennermark would sign the name “James L. Wennermark.” To make withdrawals from and deposits to the separate Wennermark Company account at the Bank of America, Highland Branch, the elder Wennermark would sign his own name, “E. F. Wennermark.” He admitted that the agreement between the parties required cosignatures on all checks drawn on the joint venture account. Emmett Harris had insisted upon this arrangement as the result of prior dealings with the elder Wennermark.

The first five progress payment checks to the joint venture “Wennermark Co. and Emmett J. Harris” for work performed on this contract were mailed directly to the joint venture office at 481 Church Street, San Bernardino, California. The first progress payment check in the amount of $42,840 bears a typed endorsement by Mrs. Norma Miller as follows:

Pay to the Order of Security 1st Nat’l Bank Highland & Wall Branch San Bernardino, Calif.
For Deposit Only Wennermark & Harris

The second progress payment check in the amount of $15,073.20 bears a typed endorsement by Mrs. Miller as follows:

Pay to the Order of Security 1st Nat’l Bank Highland & Wall San Bernardino, Calif. For Deposit Only

The third progress payment check in the amount of $22,714.56 bears an endorsement in longhand as follows:

For Deposit Only Wennermark & Harris Security 1st Nat’l Highland — Wall San Bdno, Calif.

The endorser is not identified. The fourth progress payment check in the amount of $33,402.78 bears a stamped and typed endorsement as follows:

[stamped] Security First National Bank Highland Wall Branch For Deposit Only Wennermark Company [typed] Emmett J. Harris

The fifth progress payment check, the one involved in this litigation, in the amount of $52,000.74, bears the following endorsements:

[longhand] Emmett J. Harris San Bernardino, California Wennermark Company [typed] Wennermark Co. & Emmet J. Harris [sic]
For Deposit Only Bank of America Highland Branch [longhand] James L. Wennermark

Facts relating to the path of this check are hereinafter set forth in some detail, since they are at the very core of this litigation. Bearing No. 54,265,441, symbol 3120, the check was issued by the Government on June 7, 1965, and arrived at the joint venture office in San Bernardino shortly after 9 a. m., on June 9, 1965. Mrs. Miller was then alone in the office. Several minutes later E. F. Wennermark arrived and Mrs. Miller handed the check to him. The elder Wennermark instructed Mrs. Miller to type the endorsement quoted above as “typed.” He cautioned her to tell no one, including Emmett Harris, that the check had arrived. Harris entered the office shortly thereafter at 9:30 a. m. After a brief conversation with Harris, E. F. Wennermark departed with the check. Harris was not told of the check’s arrival.

The elder Wennermark went to the Bank of America (Highland Branch) and arrived at approximately 10 a. m. At the third party Bank, E. F. Wennermark proffered the check with the typed endorsement to the teller, a Mrs. Luella Elaine Barnes, for deposit in the checking account of the Wennermark Company. Mrs. Barnes advised the elder Wennermark that the cheek was not properly endorsed since it was only typewritten, whereupon in the presence of Mrs. Barnes, E. F. Wennermark endorsed the name “James L. Wennermark” on the back of the check below the typed endorsement.

Mrs. Barnes, nevertheless, again refused the check, indicating that the signature of the other payee, Emmett J. Harris, was required. Mrs. Barnes further told the elder Wennermark that Harris did not have an account at the Bank of America, Highland Branch, and that accordingly the procedure was that he (Harris) should come to the Bank, endorse the check in front of the teller, and present his identification. The elder Wennermark insisted that the check be accepted for deposit. Mrs. Barnes sought to refer the matter to an officer of the Bank but found that they were all outdoors on an adjacent parking lot which was then in the process of being paved. She placed the check to one side and did not include it in her work. The elder Wennermark left the Bank without the check, pending scrutiny by a Bank officer.

When an officer of the Bank returned, Mrs. Barnes explained the matter. The officer agreed that the Bank could not accept the check as endorsed. At approximately 1 p. m., Mrs. Barnes called the joint venture office and spoke to Mrs. Miller, informing her that the $52,000.74 check received that morning for deposit to the checking account of Wennermark Company, was not properly endorsed and that someone must come to the Bank to pick it up.

Around 2 p. m., the elder Wennermark returned to the joint venture office, having lunched with Emmett J. Harris, still without mentioning the cheek to him. Mrs. Miller communicated the Bank’s message to Wennermark, Sr., and he said: “I’d better go get that check.” When E. F. Wennermark returned to the teller’s window, Mrs. Barnes called Mr. Kusick, an officer of the Bank, who returned the check to E. F. Wennermark with the explanation that the Bank would need the signature of Mr. Harris. The elder Wennermark stated: “There will be no problem. I will call him on my car phone.” Within minutes, Mrs. Miller received a call from E. F. Wennermark from his car telephone. He asked her to meet him at Baseline and “D” Streets, refusing to tell her why, but emphasizing that he had something for her to do.

Mrs. Miller found the elder Wennermark in his ear at Baseline and “D” Streets. He then handed her the check and bankbook. Instructing her to deposit the check in the Wennermark Company account, the elder Wennermark told Mrs. Miller to “wait a few minutes before you do, because they think I came to the office for Harris to sign it.” Mrs. Miller waited, and then went into the bank. She noticed at this time that two signatures in longhand appeared on the back of the check (those of Emmett J. Harris and James L. Wennermark) in addition to the endorsement which she had previously typed. Mrs. Barnes accepted the cheek for deposit to the account of Wennermark Company. She first obtained the Bank manager’s (Don Hiltabidel) initials on the deposit slip before accepting the check. Mrs. Miller then returned the deposit slip and bankbook to the elder Wennermark. E. F. Wennermark was not seen in the joint venture office, or on the job, subsequent to this check transaction.

E. F. Wennermark admits that he signed both the names “James L. Wennermark” and “Emmett J. Harris” on the check. Moreover, James L. Wennermark stated at the trial that the endorsement of his name on the check was not made with his consent, and that he did not authorize his father specifically to endorse the check. Emmett Harris testified at trial that he never, directly or indirectly, authorized the elder Wennermark to sign his (Harris’) name to the check. The record in this case is devoid of any evidence indicating that by his own hand, E. F. Wennermark had ever previously endorsed a progress payment check such as the one involved in this case. The record is also devoid of any evidence that E. F. Wennermark on any occasion had ever signed the name “Emmett J. Harris” to any joint venture document or paper.

On the day following the above-described events, June 10, 1965, E. F. Wennermark drew a check in the amount of $45,000 on the Wennermark Company account at the Bank of America, Highland Branch. He had the check made payable to himself, and deposited it in a bank account in his own name in Las Vegas, Nevada. Several days thereafter, he drew a check for $45,000 upon the Las Vegas account and deposited it in a new personal account in a branch of the Bank of America at Los Angeles. He then went to Mexico for a few days. Upon his return, he drew a check for $45,000 on this new Los 'Angeles Bank of America account and directed his stepdaughter, Annette Furiani, to cash the check at the bank and bring him the proceeds. He placed the cash in his briefcase and “hauled it around in his ear” for a month. This cash was later used to purchase an Arizona nightclub, the Alibi Club.

Certain other withdrawals were made by E. F. Wennermark against the $52,000.74 progress payment check he had deposited with Mrs. Barnes at the Highland Branch of the Bank of America. There was a check for $100 made out to cash. E. F. Wennermark could not say what had happened to the proceeds. A check for $2,135.52 was drawn to pay off E. F. Wennermark’s personal note on his trailer home. A check for $93.25 was used to pay a restaurant bill. One check for $3,000 made out to cash (with no endorsement on the back) was drawn on the account. E. F. Wennermark could not say what had happened to the proceeds. There was a salary cheek payable to Mrs. Norma Miller. The face of the check states the amount of $175 in figures, but the amount of $125 in writing. One check for $1,000 was made payable to “Wennermark & Harris.” A $500 check was drawn on the account, payable to the aforementioned Annette Furiani.

When the fifth progress payment check for $52,000.74 had failed to appear in the San Bernardino office of the joint venture when expected, and E. F. Wennermark had “disappeared,” the younger Wennermark and Emmett Harris were greatly concerned. Their concern was heightened when Harris telephoned the disbursing office of the U.S. Treasury in San Francisco and learned that the check dated June 7th had in fact been mailed.

On June 16, 1965, James L. Wennermark and Emmett Harris visited the Finance Officer at the Bureau of Reclamation office in Yuma, Arizona, to inquire about the fifth progress payment check. They were advised that they could request “stop payment” on the check. On that same day the younger Wennermark and Harris addressed a letter to A. B. West, Regional Director of the Bureau of Reclamation at Boulder City, Nevada, requesting that payment be stopped on the check. They also sought reissuance of the cheek to the joint venture; but the check has never been reissued.

On June 25, 1965, the Treasurer of the United States declined payment of the check to the Bank. The younger Wennermark and Emmett Harris executed and transmitted to the U.S. Treasurer, on July 7, 1965, a “Claim against the United States for the Proceeds of a Government Check or Checks” wherein they stated that “neither the endorsement of James L. Wennermark or Emmett J. Harris was made with the consent, agreement or understanding with anyone.”

Thereafter, on July 29, 1965, the joint venture advised plaintiff surety that it was unable to complete the contract. In the same letter, the joint venture acknowledged a loan agreement with plaintiff setting up a joint account in the Security First National Bank, Los Angeles, to handle completion of the contract, and a power of attorney to the attorney for plaintiff surety authorizing him to endorse future Government estimate checks for deposit in this joint account. The contract was completed, and accepted by the Government on August 19, 1965.

On October 22, 1965, the third party Bank wrote to the Treasurer of' the United States demanding payment of the amount of the fifth progress payment check on the ground that E. F. Wennermark had possessed authority to endorse the cheek on behalf of the joint venture. Robert E. Brimberry, an attorney for plaintiff surety, addressed a letter dated November 1, 1965, to the Treasurer of the United States, stating that the loss to the joint venture due to the withholding of the $52,000.74 check “has actually now been suffered by the surety.” On March 27, 1966, the joint venture executed a release to the United States through the contracting agency in exchange for remittance of the final payment. Excepted from the release, was claim for the check in question.

In the course of the trial, plaintiff surety offered evidence in the form of canceled drafts that in financing the joint venture to completion, it suffered a net loss over and above any credits it received during the course of performance from the Government, or thereafter from members of the joint venture. The surety offered evidence that the total amount expended by it was $101,057.-75, and that the total credits against this sum were $30,316.32. The net loss was placed at $70,741.43, a sum in excess of the amount of the check here involved. The third party Bank offered proof to diminish the amount of the loss alleged to have been suffered by the surety. However, all proofs taken together establish that plaintiff surety, in financing the contract to completion, suffered a net loss greatly in excess of the $52,000.74 here at issue.

Before dealing with the issue of “whether the plaintiff or the Bank is entitled to recover the contract balance now held by the defendant * * * in a stakeholder capacity,” it is necessary to dispose of a number of arguments raised by defendant’s counsel, who declines to accept the role of stakeholder.

Briefly stated, it is argued on the one hand that the sum in dispute has already been paid by the Government. The simple answer to this argument is that it is manifestly incorrect. The clear and undisputed facts are that the work represented by this progress payment check was performed; a cheek was issued in payment thereof; with the advice and assistance of Government officials, a “stop payment” was requested on the cheek by the contractor and, accordingly, the Treasurer of the United States declined payment thereof; and a request by the contractor for reissuance of the check was denied. Reissuance was denied because the Treasurer of the United States was advised by the General Accounting Office that “further action must be held in abeyance until such time [as] a judicial determination is made establishing the party entitled” to the proceeds of the check in question. In sum, the General Accounting Office, the Treasurer of the United States, the plaintiff, the third party defendant, and this court in its prior treatment of the case, are all of the opinion that the issue is whether the plaintiff or the Bank is entitled to recover an unpaid contract balance now held by the defendant in a stakeholder capacity. There is nothing in the record to support a contrary opinion as to the issue.

Relying principally upon Home Indemnity Co. v. United States, 376 F.2d 890, 180 Ct.Cl. 173 (1967), defendant’s counsel also argues strenuously that plaintiff surety has no claim because the Government had no formal notice of the fact that the surety was financing completion of the contract work and paying the outstanding bills thereby incurred by the joint venture. Counsel’s reliance on Home Indemnity, and that line of cases, is wholly misplaced.

In Home Indemnity the United States had paid out the contract balance to the contractor. Having given notice to the Government of its interest prior to such payment, the surety sued the Government, claiming that the moneys had been wrongfully paid to the contractor. In that case, the United States was being asked to pay twice. This case presents a wholly different situation; the Government still has the contract balance in its possession, having never paid the fifth progress payment cheek to the contractor or anyone else.

In contrast, in Fidelity & Deposit Co. v. United States, 393 F.2d 834, 837, 183 Ct.Cl. 908, 912 (1968), where the double payment problems of Home Indemnity were not involved, the court observed:

* * * It is not necessary that there be a formal declaration of the contractor’s default. All that is necessary for the surety to prevail is that the contractor be in default as a matter of fact; and that as a result of such default, the surety has become obligated to pay under its payment or performance bond. The surety’s potential rights become an actuality when it pays the obligations of its principal. Thereupon, the surety’s rights of subrogation relate back to the date of the execution of the surety bonds. [Citations omitted.]

When the joint venture, by letter of July 29, 1965, advised plaintiff surety that it was unable to complete the contract work, it acknowledged that it was in actual default on the contract. Although the surety or joint venture did not then formally convey notice of default to the Government, the obligation of the surety then vested under its performance and payment bonds. There followed the loan agreement and joint account earlier mentioned, and the financing by the surety of the contract to completion. The surety was then subrogated to whatever rights the contractor had in the contract balance.

This case is very close to Morgenthau v. Fidelity & Deposit Co., 68 App.D.C. 163, 94 F.2d 632 (1937), which has been favorably cited by the court in Hardin County Sav. Bank v. United States, 65 F.Supp. 1017, 1022, 106 Ct.Cl. 577, 598 (1946). Morgenthau also involved a situation in which the surety advanced money to a Government contractor to enable the contractor to complete the contract. In analyzing the surety’s position in those circumstances, the court stated at 94 F.2d 635:

x x x The contractor failed to carry out his contract, and the surety advanced the money, and in addition paid all the labor and material bills still unpaid. It did this, not as a volunteer, but by reason of its contract entered into before the commencement of the work. Its advance to the contractor and its payment to the laborers and materialmen released the contractor from his obligations under the contract and, as the Supreme Court said in Henningsen v. U.S.F. & G. Co., 208 U.S. 404 [28 S.Ct. 389, 52 L.Ed. 547] * * * likewise released the government from all equitable obligations to see that the laborers and supplymen were paid. It thereby became subrogated to the equity of the United States. Its action created in itself an equitable right which entitled it to demand and receive the balance due from the United States * * * .

The plaintiff in this case has acquired similar equitable rights by reason of its expenditures. Without those expenditures, the contract would not have been completed by the joint venture.

It is not clear from defendant’s brief just whom it believes should receive the proceeds of the check, unless perhaps it is the contractor or the third party Bank which negotiated it on E. F. Wennermark’s endorsement. Considering the contractor as a potential payee, suf-' fice it to say the joint venture makes no claim to the check proceeds, and James L. Wennermark and Emmett Harris testified on behalf of plaintiff to many of the facts upon which plaintiff relies to support its claim. They initiated the “stop payment” on the check, denied E. F. Wennermark’s right to endorse it and to appropriate the proceeds, and confirmed the surety’s rights by the aforementioned assignments and designation of the surety as their attorney in fact. All this was in furtherance of their joint effort to complete this Government contract, and to avoid a formal default termination.

As for the testimony elicited by defendant on behalf of E. F. Wennermark’s authority in this transaction, it is best covered along with the discussion hereinafter of the Bank’s arguments supporting its claim to the check proceeds. The rights of the third party Bank depend upon the authority of E. F. Wennermark to endorse the Treasury check made payable to the joint venture. This is the rule enunciated in the Uniform Commercial Code, § 3-404 of which provides in part:

(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it * * *.

The Official Comment to this section further explains that:

A person who is allegedly bound by an instrument may deny that he is bound because what purports to be his signature is unauthorized. Such a defense, if successfully maintained, is valid against all holders, including those having the rights of a holder in due course.

The names “James L. Wennermark” and “Emmett J. Harris,” as endorsees, placed on the fifth progress payment check by E. F. Wennermark, constituted unauthorized endorsements. They did not bind the joint venture nor did they bind plaintiff surety which derives its rights through its bonding relationship with the joint venture. Third party defendant is therefore not even a “holder” of the instrument entitled to payment since a “‘(h) older’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank.”

The Uniform Commercial Code § 1-201(43) defines an unauthorized endorsement as follows:

‘Unauthorized’ signature or indorsement means one made without actual, implied or apparent authority and includes a forgery.

Applied to the facts of this case, this provision of the Code would require actual, implied, or apparent authority on the part of E. F. Wennermark to bind both James L. Wennermark and Emmett Harris when he placed their signatures on the check.

The burden of proving this authority rests upon the third party defendant Bank. That burden has not been sustained.

The evidence does not establish that E. F. Wennermark had actual or implied or apparent authority to endorse the names of both James L. Wennermark and Emmett J. Harris. Moreover, the Bank has not even argued that authority to sign just one of those names would be sufficient to make it a holder, or holder in due course of the check. On the basis of the facts developed at the trial, it is concluded that the Bank acquired no right to the proceeds of the check, and that plaintiff is entitled thereto.

The concepts of actual, implied, and apparent authority are not sharply defined. Courts, text writers, and codes assign differing meanings (and in some cases different names) to these differing types of authority. The Uniform Commercial Code, moreover, is silent as to the meaning it gives these words. But regardless of the meaning assigned, neither actual, nor implied, nor apparent authority in E. F. Wennermark to sign the names of both principals in this joint venture can be found in this record.

The Restatement (Second) of Agency § 7 (1958) defines “authority” (as distinguished from “apparent authority” and “inherent agency power”) as:

•x * * ^e power of the agent to affect the legal relations of the principal by acts done in accordance with the principal’s manifestations of consent to him.

The Comment to § 7 indicates that “manifestation” means the expression of the will (as distinguished from the undisclosed purpose or intention), and that the manifestation may be made by words or other conduct, including acquiescence. In other words, the manifestation may be “express” or “implied.”

By way of comparison, the California Civil Code § 2316 (West 1970) defines “actual” authority (as distinguished from “necessary” authority and “ostensible” authority) as: “ * * * such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess.” In a gloss upon this section of the code, the California case of Hobart v. Hobart Estate Co., 26 Cal.2d 412, 159 P.2d 958 (1945), observes that actual authority may be implied as well as express.

The California Civil Code § 2319 separately defines “necessary authority” as follows:

An agent has authority:
1. To do everything necessary or proper and usual, in the ordinary course of business, for effecting the purpose of his agency; and,
2. To make a representation respecting any matter of fact, not including the terms of his authority, but upon which his right to use his authority depends, and the truth of which cannot be determined by the use of reasonable diligence on the part of the person to whom the representation is made. [Emphasis supplied.]

The evidence certainly fails to demonstrate that E. F. Wennermark had “actual” or “implied” authority to endorse his son’s name and that of Emmett Harris to the fifth progress payment check. No credible evidence was offered to support a finding that the joint venture agreement conferred such a power. Both the younger Wennermark and Emmett Harris emphatically denied that they had expressly conferred such authority. E. F. Wennermark had never before signed either his son’s name or Harris’ name to any prior joint venture progress payment check. Hence there were no manifestations nor acts of acquiescence on the part of the younger Wennermark and Harris which can be said to have established express or implied authority to endorse their names to the check. Significantly, the elder Wennermark obviously did not himself believe that he possessed such authority. His conduct immediately prior to, in the course of, and following his repeated efforts to deposit the check in the Wennermark account, was devious, furtive, and fugitive.

Nor can it be said that the authority to sign progress payment checks was necessary to the accomplishment of E. F. Wennermark’s responsibilities. His responsibilities did not include the depositing of progress payment checks in the joint venture account. That was the job of the joint venture secretary, Mrs. Miller. Nor was his signature on or his signing of the progress payment check necessary, for it is clear that the joint venture’s bank regularly accepted stamped or typed endorsements “for deposit only” to the joint venture account.

The Bank relies heavily on the general power of attorney by the younger Wennermark, executed back in 1960 or 1961 and conferring broad authority on his father to transact any kind of business in his name. It also stresses the fact that the elder Wennermark signed several joint venture documents, as well as joint venture payroll checks as drawee, in the name of James L. Wennermark. But this relates to only one of the two joint venturers. Moreover, this somewhat stale power of attorney, which was of questionable origin and was related to a transaction remote in time, business relationship, and purpose from the transaction here involved, standing by itself or in conjunction with the other acts of E. F. Wennermark, is not sufficient to establish the authority to sign joint venture progress payment checks, in the face of all other evidence to the contrary. The authority of an agent to make or endorse negotiable instruments is not lightly inferred, nor implied.

The Bank also fails in its efforts to demonstrate “apparent” or “ostensible” authority on these facts. In American Anchor & Chain Corp. v. United States, 331 F.2d 860, 861-862, 166 Ct.Cl. 1, 3-4 (1964), the court stated with respect to “apparent” authority:

A. It is now commonplace that, except where formality is expressly required, apparent authority to do an act on behalf of a principal may be created by written or spoken words or other conduct of the principal which, if reasonably interpreted, causes a third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him. A.L.I., Restatement, Agency 2d § 27 (1958); Standard Oil Co. v. Lyons, 130 F.2d 965, 968 (C.A. 8, 1942). The heart of this principle is that it is fair — especially in a complex society where transactions are most often carried on through others —to require “one who allows another to appear to be his agent * * * [to] bear any loss resulting to a third party from his dealings with the apparent agent in that capacity in reliance on his supposed authority.” Mechem, Outlines of the Law of Agency (4th ed., 1952), § 84. * * *

In the same vein, the Restatement (Second) of Agency § 8 (1958) describes apparent authority as: “ * * * the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.” Similarly, the California Civil Code § 2317 (West 1970) defines ostensible authority as. «* * guch as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” In construing this section, the often cited case of Harris v. San Diego Flume Co., 87 Cal. 526, 25 P. 758 (1891), held that one who seeks to charge a principal on the basis of ostensible authority must himself believe that the agent had authority to perform the act in question.

On the facts of this case, the Bank could not have entertained any reasonable belief that E. F. Wennermark had authority to sign the names of either James L. Wennermark or Emmett J. Harris. At the time of the attempted negotiation of the fifth progress payment check at its Highland Branch, the Bank of America was aware that E. F. Wennermark was signing the name “James L. Wennermark” as agent since he did so in front of its teller, Mrs. Barnes. The Wennermark Company account was at this Bank. E. F. Wennermark had in the past, when depositing checks payable to Wennermark Company or withdrawing funds from the Wennermark Company account, regularly signed his own name, E. F. Wennermark. E. F. Wennermark was known at the Bank as E. F. Wennermark. The record is devoid of evidence that the younger Wennermark intentionally or by want of ordinary care caused or allowed the Bank of America to believe that his father possessed the authority to sign the name “James L. Wennermark.”

His lack of authority with respect to his endorsement of Emmett Harris’ name on the progress payment check is even more obvious. The Bank never believed that E. F. Wennermark had authority to sign Harris' name. Both the teller and one of the officers treated the check as a two-party check from the beginning. The elder Wennermark was expressly told that the signature of the other payee, Emmett J. Harris, was required. In fact the Bank initially advised E. F. Wennermark that its procedures required that Harris come to the Bank, endorse the check in front of the teller, and present his identification. There was no intimation that, alternatively, E. F. Wennermark could sign as agent for Harris. If that were permissible, he could and would have done so then and there. On the contrary, in violation of its own stated procedure, the Bank later accepted the progress payment check for deposit upon the representation of E. F. Wennermark that he had delivered the check to Harris, who had supposedly signed it. The Bank at no time relied upon the belief that E. F. Wennermark was authorized to sign Emmett Harris’ name.

The Bank also urges that the elder Wennermark was actually a member of the joint venture, and therefore had authority to endorse its checks. Likening joint adventures to partners, the Bank cites the general rule that: “A partner has apparent authority to indorse checks and notes.” [Emphasis supplied.] However, even assuming arguendo that a joint adventurer is equivalent to a partner, and assuming further that the elder Wennermark was a joint adventurer with Emmett Harris (a highly doubtful finding on the facts of this case), that would be only a beginning point, and not dispositive of the issue of his authority to endorse checks payable to the joint venture. As the rule cited by the Bank provides, a joint venturer (partner) has “apparent” authority to sign checks payable to the joint venture. The apparent authority of E. F. Wennermark to sign checks as a partner or joint venturer was not relied upon by the Bank and therefore the doctrine of apparent authority has no application. The Bank did not rely upon E. F. Wennermark’s apparent authority to endorse Emmett J. Harris’ name, but rather relied (in contravention of its own previously stated procedure) upon the representations of E. F. Wennermark that he had secured Harris’ actual signature from Harris himself.

All of the foregoing considered, it is concluded that plaintiff is entitled to judgment for the contract balance of $52,000.74.

      . 397 F.2d 289, 184 Ct.Cl. 520 (1968).

      . The Bank had been summoned by the plaintiff.

      . Under the Miller Act, the Government has long required its construction contractors to furnish performance and payment bonds insuring their responsibility, their ability to perform, and their payment of laborers, materialmen and suppliers (who are not otherwise permitted to file liens on Government projects). The sureties providing the bonds under the Act are selected from an approved list published by the U. S. Treasury Department.

      . This payment is often referred to in the record as the fifth progress (or partial) payment. There is no question that the work represented by the check was satisfactorily jjerformed, and that the payment was, and still is, due and owing for performance of the work represented thereby.

      . They are the issues dealt with in this opinion.

      . The record illustrates that the joint venture was financially unable to proceed when it did not receive the proceeds of the check.

      . As will appear later in this opinion, the findings in this case confirm that E. F. Wennermark did in fact wrongfully and without authority convert and dispose of the proceeds of the check.

      . Actually plaintiff-surety did not in its own name complete the contract. That would have required a formal novation agreement substituting it for the contractor. Rather, as the findings demonstrate, it financed the contractor to completion, an informal fulfillment of its bonding obligation often employed as an alternative to a formal novation agreement, or default termination of the contract followed by substitution of another contractor. The findings support a conclusion that the plaintiff advanced sums greatly in excess of the check here in issue to assure contract completion, rendering it unnecessary to determine the exact sum advanced.

      . 397 F.2d at 290-291, 184 Ct.Cl. at 522-524. The quoted opinion is emphasized at this point only because defendant’s current counsel disputes in her brief that the Government’s role is that of a stakeholder,

      . Order filed April 15, 1971.

      . It will be recalled that the joint venture had its account not at this Bank, but at Security First National.

      . The other joint venturer.

      . Note that Mrs. Barnes had previously advised the elder Wennermark that since Harris had no account at the Bank, procedure required that he come to the Bank, endorse the check in front of the teller and present his identification. At this point in time, Harris did not even know of the check.

      . See text supra at note 9.

      . See Pearlman v. Reliance Ins. Co., 371 U.S. 132, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962) ; Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908) ; Prairie State Bank v. United States, 164 U.S. 227, 231-232, 17 S.Ct. 142, 41 L.Ed. 412 (1896) ; and National Surety Corp. v. United States, 133 F.Supp. 381, 132 Ct.Cl. 724 (1955).

      . Cited with approval by this court. See, for example, Northern Helex Co. v. United States, 455 F.2d 546, 197 Ct.Cl. 118 (1972).

      . Identical to Cal.U.C.C.A. § 3-404.

      . Comment 3-404:3(a).

      . U.C.C. § 1-201(20).

      . Identical to Cal.U.C.C.A. § 1-201.

      . And upon defendant, if it elects to depart from its role as stakeholder. ‘‘Whenever the existence of the relationship of principal and agent is in issue, the burden of proving the issue rests with the party who asserts the affirmative — that is, the party asserting the existence of the relationship. It is also a general principle that one who has dealt with an agent or who has availed himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted; in other words, he has the burden of establishing the agent’s authority to bind the principal by the act or contract in controversy. * * * ” 3 Am.Jur.2d Agency § 348 (1962).

      . It is also worthy of note that the signature card for the joint venture account at Security First National required both signatures.

      . “Necessary authority” is a concept which 3 Am.Jur.2d Agency § 71 (1962) regards as included within the concept of “implied authority.”

      . A similar concept is reflected in Restatement (Second) of Agency § 35 (1958) which includes among the implied powers, the “incidental” authority to do acts reasonably necessary to accomplish the purposes of the agency.

      . In addition, James L. Wennermark had no personal, independent recollection of having signed the power of attorney. Only after much hesitation did he at the trial identify the signature on the power of attorney as his own. There is no reliable proof that the power of attorney was ever placed on file with any third party.

      . See, for example, Arcade Realty Co. v. Bank of Commerce, 180 Cal. 318, 181 P. 66 (1919).

      . Tlie Comment to § 8c emphasizes that apparent authority exists only where the third person Relieves the agent to be authorized to do the act in question.

      . Crane & Bromberg, Law of Partnership, § 50(g), at 287 (1968).

      . Lentz v. United States, 171 Ct.Cl. 537, 346 F.2d 570 (1965), upon which the Bank strongly relies in its presentation to the judges, did not hold that a partner or joint venturer has such actual authority to collect payment that it makes no difference whether the payor knows of or relies upon that authority, or even knows that the payees constitute a joint venture. Among other significant differences from the present case, the facts in Lentz showed that the Federal Government (unlike the Bank here) was amply on notice that it was dealing with a joint venture, and (again unlike the situation here) that the Government could properly rely on an already existing practice of having cheeks to the joint venture endorsed by only one member. [Footnote by the court.]


author: WATSON, Judge.

text:
    Application of Paul A. MULLER.
    Patent Appeal No. 8857.
    United States Court of Customs and Patent Appeals.
    Aug. 9, 1973.
    David E. Varner, Cushman, Darby & Cushman, Washington, D. C., attorneys of record, for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Raymond E. Martin, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN, LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation.
   WATSON, Judge.

This is an appeal from the decision of the Patent Office Board of Appeals sustaining the examiner’s rejection under 35 U.S.C. § 103 of claims 11 and 12 of appellant’s application entitled “Crimped Flat Material for Filter Plugs.” We reverse that decision.

Invention

Appellant’s claims are directed to a paper material (claim 11-) which can be used as the filtering medium for cigarettes and a filter (claim 12) made therefrom. The claims are reproduced below:

11. An absorbent sheet adapted to be gathered and shaped to make a filter plug for cigarettes comprising an elongated web of paper strip material having set therein, throughout the area thereof, closely-spaced corrugations extending generally longitudinally of said web, said web being stretched laterally and the fibers of said strip material being at least partially pulled apart laterally of said web to an extent sufficient to provide throughout the extent of said web a plurality of randomly-distributed discontinuous longitudinal tears.
12. A filter for cigarettes comprising a consolidated filling having the shape of a cylindrical plug, said filling consisting essentially of paper strip material provided with closely-spaced longitudinal corrugations set therein, throughout the area thereof, prior to consolidation of said filling, said paper strip material being stretched transversely and the fibers of said paper strip material being at least partially pulled apart transversely of said material to an extent sufficient to provide throughout the extent of said material a plurality of randomly-distributed discontinuous longitudinal tears, said material having lateral gathers disposed close to each other in compressed relation and arranged as adjacent layers whereby said consolidated filing has generally longitudinal passageways along said corrugations and between said layers, and said passageways are generally laterally connected through said tears.

The claimed invention can be best understood by considering the process by which the filter paper is made. Briefly, and with optional steps omitted, a continuous length of paper is unrolled and passed through a moistening device which makes it more yielding. The moistened paper is then passed through at least one set of crimping or corrugating rollers which also laterally stretch the paper as it is longitudinally crimped. A set of rollers is made up of two rollers each of which has closely spaced circumferential ribs and grooves. The rollers are shaped so that the ribs of one extend into the grooves of the other.

According to appellant’s specification, the rollers are designed to interact on the paper material being crimped in a manner that:

* * * two narrow zones of material are kept rigid along each groove and the central zone in between is deformed. Owing to the lateral zones being kept rigid, the central zone can only be deformed if the material in it is stretched at the same time.
This stretching process, of course, partially separates or pulls apart and consequently loosens the fibers of the material. This process is carried out successively on a plurality of parallel grooves and yields a web of material whose surface has been enlarged at the expense of the thickness of the material at the [stretch] point concerned.
* * * * * *
The stretching of the flat material depends primarily on the depth of the individual grooves and may be greater or less according to the type of material.
* * *• * * *
* * * for filtering purposes the material can be so vigorously stretched that randomly distributed tears, cracks and holes are produced in the crimped web.

The tears created by this process run in a longitudinal direction and are characterized by having ragged edges caused by the fibers being torn rather than cut apart by a knife or other sharp instrument.

After the crimping step, the paper web is dried to set the corrugations. Cigarette filters are made from this paper by compacting it by well-known procedures.

Opinion

The board construed the examiner’s rejection of claims 11 and 12 under 35 U.S.C. § 103 as having been based on a combination of three references. These references are:

Walker 1,980,563 November 13,1934
Davidson 2,164,702 July 4,1939
Bunting 420,464 (British) December 3,1934

Davidson discloses a method of making a filler plug for a cigarette mouthpiece which involves crimping ordinary paper or gathering creped paper. Although the specification to this patent occasionally uses the term “filter” for this plug, it is quite apparent that this is a typographical or printing error. The disclosure is in terms that make it clear that the corrugated or crimped paper is intended to be merely a filler for the mouthpiece as no filtering function is attributed to it. The crimping is done in a manner similar to that used by appellant as grooved rollers are used. Regarding this process, the following observation appears in Davidson:

With some grades or classes of paper there is a risk of tearing if the rugations be formed simultaneously across the strip.

To avoid this problem, Davidson recommends that the corrugations be put in the paper by a sequence of corrugating steps rather than by putting them in by a simultaneous process.

Walker discloses a cigarette structure having one end covered by a circular piece of paper. Holes are made in the paper to allow smoke to pass through. It is preferred that these holes be punched in the paper, rather than cut, in order that they might present ragged edges to the smoke as it passes through. These edges are intended to aid in filtering the smoke by straining out impurities.

Bunting describes cigarette filters in general, including one made of creped paper having perforations or ruptures therein. These perforations may be uniformly or randomly disposed in the creped paper. The manner in which these perforations can be made is not described. However, from a drawing showing them as round holes, it can be assumed that one technique used would be to cut out a portion of the paper.

In reaching its conclusion that the invention would have been obvious, it appears to us that the board did so, at least in part, because of an erroneous conclusion reached by it regarding what is taught by Davidson. The board said:

Davidson also discloses what he wishes to avoid, namely the tearing of longitudinal slits by stretching the paper in a direction transverse to the slits and to the length of the web. .

From this the board reasoned as follows :

In our opinion, it would be suggested to one ordinarily skilled in the art of paper manufactures that the strip of Davidson’s Figure 13 could be provided with irregularly distributed “breaks or ruptures” as in Bunting, that those breaks or ruptures could be made by stretching appropriate quality of paper as in Walker for Walker’s frayed edge purpose; and that the stretching could be lateral to create tears longitudinally of the strip in the manner Davidson discloses but wishes to avoid.

We do not agree with the board’s reasoning. The conclusion made with regard to Davidson can only have been reached by reading into it appellant’s disclosure of his own invention. The reference is completely silent as to whether the tearing observed by Davidson results in longitudinal slits. For all it reveals, the tearing may have been, and probably was, so severe that the paper could not have been used as a filler for a cigarette mouthpiece. If this were not so, there would be no need to describe a method to avoid that which Davidson regarded as a problem. After all, the paper obtained by appellant’s process functions as a filler and a filter for a cigarette mouthpiece. This would indicate that had Davidson merely torn slits in the paper, as the board suggests, it would still have been useful as a filler for the mouthpiece.

Because Davidson teaches that crimping should not be done under conditions where tearing will occur, presumably for the reason that he could not control the tearing enough to obtain useful paper, we do not think that it would be obvious to one skilled in the art to combine the teachings of Walker and Bunting with Davidson in order to obtain appellant’s invention. Neither Walker nor Bunting describes a filter having elongated tears with ragged edges as a filtering aid, and we find in them no suggestion of the desirability of such a structure.

One might ask why elongated tears vis-a-vis tears or cuts of circular or near circular cross-section are not merely a matter of choice. In other words, why would it not be obvious to merely provide any filter paper, for example, Bunting’s or a paper in the configuration shown by Davidson, with longitudinal tears rather than cut or punched holes? Our answer to that question grows out of the claim language itself. Claims 11 and 12 do not call for longitudinal holes or slits per se in the filter paper. Instead, they call for tears produced by laterally pulling the paper web apart “to an extent sufficient to provide throughout the extent of said web a plurality of randomly-distributed discontinuous longitudinal tears.” In other words, the tears are defined by the process by which they are made. As such, and the Patent Office has not suggested otherwise, we are forced to assume that the manner in which the tears are made would distinguish the paper from that obtained by other methods which might be envisioned as producing a similar paper. For this reason, the manner in which the tears are made becomes a critical consideration in determining whether the claims would have been obvious to one skilled in the art since the paper and the process of making it cannot be divorced from each other.

As we have already pointed out, Davidson in effect teaches away from appellant’s process of making his paper. The methods disclosed in Walker and Bunting are not related to that used by appellant. All of these considerations convince us that the invention would not have been obvious. Accordingly, the decision of the board is reversed.

Reversed.

MARKEY, C. J., dissents.

BALDWIN, J., concurs in the result.

      . Serial No. 700,300 filed January 24, 1968.


author: RICH, Judge.

text:
    Application of Leonard M. RICE.
    Patent Appeal No. 8961.
    United States Court of Customs and Patent Appeals.
    July 19, 1973.
    Donald R. Dunner, Lane, Aitken, Dunner & Ziems, Washington, D. C., attorneys of record, for appellant. Thomas R. Boland, Washington, D. C., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Robert D. Edmonds, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   RICH, Judge.

This appeal is from the Patent Office Board of Appeals decision affirming the examiner’s rejection of claims 1-4 of application serial No. 678,502, filed October 27, 1967, for a hangover remedy, which was based on obviousness under 35 U.S.C. § 103 in view of the prior art.

Claim 1 is the only independent claim and reads:

1. A therapeutic composition of matter containing the following ingredients present in the recited approximate parts by weight:

Ingredient Parts by Weight 4 10% By Weight
Aspirin 414
Aluminum Hydroxide 130
Acetaminophen 325
Magnesium Carbonate 65
Magnesium Trisilicate 65
Nicotinamide 12.5
Thiamine Hydrochloride 5
Peppermint Oil 55
Caffeine 195

said composition being divided into two separate portions, the first portion containing the recited amounts of aspirin and aluminum hydroxide, the second portion containing the recited amounts of acetaminophen, magnesium carbonate, magnesium trisilicate, nicotinamide, thiamine hydrochloride and peppermint oil, the caffeine being present in said first and/or second portions. [Emphasis ours.]

Claim 2 reduces the permissible parts-by-weight deviation from ± 10% to ±5%; claim 3 divides the caffeine between the first and second portions in a certain way; and claim 4 states that the aluminum hydroxide is a gel. Appellant agrees the claims stand or fall together.

The unobviousness of the claimed invention is argued by appellant on a very narrow ground having nothing to do with the obviousness of using the particular ingredients, as is evident from the opening admission in appellant’s brief that

Each of the ingredients utilized in the claimed composition is known to be effective for the specific purpose intended by appellant and several have been generally used in treating some of the symptoms of overindulgence [in alcohol].

As a matter of interest and to aid in understanding .why appellant combines these particular ingredients in his remedy, his specification points out that there are, in terms of function, six essential ingredients: an analgesic, an antidepressant, a mild stomachic, a mild anesthetic, a general metabolic systemic, and an antacid. It is concededly prior-art knowledge that these properties are known to be possessed by the ingredients listed. In the formulation of claim 1, there are two analgesics, three antacids, and two metabolic systemics. The peppermint oil is classified as both mild anesthetic and stomachic.

The arguments for patentability have to do only with the stability, shelf-life, and commercial practicability of the composition. Having decided to compound a remedy with the above ingredients, it appears to have been discovered that they could not all be mixed together and marketed in that form because some of the ingredients decompose, offensive odor develops, and caking takes place, interfering with the filling of capsules.

It is said that the invention resides in combining the ingredients in a particular way with the claimed specific segregation so as to achieve compatibility of ingredients. The cats must be separated from the dogs. The invention, as claimed, is said to avoid the above-mentioned problems and to be unobvious. It will be seen from claim 1 that the total composition is divided into two parts. The aspirin and aluminum hydroxide constitute the first part; the remaining ingredients, except for the caffeine, make up the second part; and the caffeine may be solely in either part or divided between them. As disclosed, the first and second parts are placed in separate capsules for administration and a single dose would consist of two capsules, one of each kind, but encapsulation is not a claim limitation.

The sole question for us is the obviousness of making the separation of these particular ingredients into two portions in the particular manner claimed. Appellant submits that the references of record are silent both as to the presence of and a solution for the incompatibility problems. An affidavit of the appellant, who qualifies himself as a Doctor of Philosophy, from Georgetown University, registered pharmacist, and Professor of Pharmaceutical Chemistry at Howard University, with extensive work experience and some fifty technical publications to his credit, has been submitted to support the factual allegations of incompatibility when the segregation of the ingredients is not as claimed and the stability and satisfactory shelf-life of the composition, over a period of four months, when it is.

As we pointed out in In re Warner, 379 F.2d 1011, 54 CCPA 1628 (1967),

A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art. In making this evaluation, all facts must be considered. The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not, because it may doubt that the invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.

The examiner and the board cited eleven prior art references but they were relied on primarily to show the medicinal uses of the individual ingredients, which appellant concedes were known. In its decision affirming the § 103 rejection, the board relied on only three of the references and seemingly added, by taking judicial notice of it, the division of ingredients “in the common Seidlitz powder.” The board did not label this either as a new reference or a new rejection, the solicitor has not mentioned it, and we will therefore regard it as an abandoned argument. The only cited references relied on by the board are the following :

American Drug Index, 1965 Ed., pp. 24-29
Facts and Comparisons, Apr. 1965, pp. 244-249
U. S. Dispensatory, 25th Ed., Lippencott, 1955, pp. 15-17; 773-774; 890-895; 1015-1016; 1416 and 1524.

Of these, the solicitor relies only on the first two and adds reference to

Solimán, A Manual of Pharmacology, 5th Ed., 1957, pp. 38-39.

The solicitor thus abandons any reliance on the U. S. Dispensatory. Considering what the board relied on it for, this is not surprising. All the board said was

Note, the U. S. Dispensatory teaches aspirin in combination with other ingredients included in appellant’s second combination. No problems appear to be reported.

The board did not point to any compositions of aspirin with other ingredients in the cited pages of the U. S. Dispensatory, nor did the examiner. If there is such a disclosure, we do not know which “other ingredients” or how many were combined with aspirin and the absence of reference to any problem merely substantiates appellant’s point that, at least as to this reference, neither the problem nor its solution is suggested.

The solicitor bases his brief argument only on three other references. He cites the American Drug Index, together with Facts and Comparisons as teaching the use of aluminum hydroxide, aspirin, and caffeine together. This is, of course, appellant’s “first portion,” in those embodiments in which he puts caffeine in the first portion. Solimán is cited only as showing “that combinations of medicines are conventionally administered.” It is then argued

Nothing could be more obvious than to combine the remaining six ingredients in a second dosage portion. First, it would be readily apparent to one skilled in the art that the nine ingredients amount in the aggregate to more than can be administered as a single dose. Second, the noted prior art clearly demonstrates that aluminum hydroxide, aspirin and caffeine are compatible. Finally, there is nothing in the prior art to suggest that the remaining six ingredients are not compatible with each other.

We find this argument unpersuasive of obviousness. Starting from the prior art showings relied on by the Patent Office that combinations of medicines are conventional and the disclosures they have produced of specific combinations of three or four ingredients including aspirin, we think nothing could be more obvious than attempting to combine all of appellant’s ingredients. Apparently it was this attempt that brought the problem of incompatibility to light. As for all of the ingredients being too much for a single dose, there is no support for this contention. The application is silent on dose. The formula is not in terms of quantity but in terms of parts by weight. Furthermore, what is more common in those cases where a dose is too big to be swallowed in a single tablet or capsule than to take two or more at a time? That fact does not suggest putting different ingredients in separate tablets or capsules to be taken together.

The last two sentences quoted above are, in our opinion, clearly hindsight reasoning. It does not show obviousness to point out that nothing in the prior art contradicts what appellant has found. It shows, on the contrary, that those findings are valid. Of course the “remaining six ingredients” (or seven) are compatible with each other. That is what appellant found. It is their incompatibility with the first portion which underlies this invention. The prior art wholly fails to suggest even trying to put all of appellant’s ingredients together and, given a reason to do that, it fails to show either any problem in doing so or any solution to that problem. Our study of the references confirms appellant’s assertion that, as to his combination of ingredients, they contain no suggestion of a compatibility problem. The solicitor appears to suggest there really is no such problem but we think the affidavit evidence sufficiently shows that there is. Circumstances strongly confirm its existence. Why else would this application have been filed, describing and claiming from the beginning the specific two-part formulation?

The question of patentability turns, in final analysis, on the board’s contention, repeated by the solicitor, that “if a compatibility problem were to be noticed in combining the claimed ingredients, it would be obvious to solve that problem in the manner indicated by appellant.” The trouble with that argument is that it is mere assertion and that there is nothing whatever in the references to support it. In putting it forward, the board said, referring to appellant’s ingredients, “It should be noted that an infinite number of combinations is possible.” Accepting that as an approximation to the truth, we fail to see the obviousness in devising appellant’s particular two-part segregation of ingredients as claimed.

The decision of the board is reversed.

Reversed.

      . The record shows this to he a dried gel hut neither the specification nor claims so specify. The argument is that those skilled in the art would know it is dried.

      . The board opinion leaves it to us to find out what a Seidlitz powder consists of and how the ingredients are segregated. We find the information in Webster’s New International Dictionary, 2d ed. 1934, as follows:

        Seidlitz powders. Effervescing salts consisting of two separate powders, one of 40 grains of sodium bicarbonate mixed with 2 drams of Rochelle salt and the other of 35 grains of tartaric acid. The powders are mixed in water, and drunk while effervescing, as a mild cathartic; • — so called from the natural water of Seidlitz. Called also Rochelle powders. Elementary chemical knowledge indicates the two parts contain a base and an acid, respectively, that in the presence of moisture they react, to produce effervescence, and there would be an obvious reason for segregation.


author:
LANE, Judge.
      BALDWIN, Judge

text:
    Application of Howard L. PARKS.
    Patent Appeal No. 8990.
    United States Court of Customs and Patent Appeals.
    Aug. 16, 1973.
    Nathan Cass, Westlake Village, Cal., attorney of record, for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   LANE, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, adhered to upon reconsideration, sustaining the examiner’s rejection of claims 11 through 14 of appellant’s application Serial No. 666,383 filed September 8, 1967, entitled “Interconnection of Stacked Layers.” No other claims remain in this case. We affirm the board’s decision.

.Rejected claim 11 reads as follows:
11. A laminated structure comprising a first and a second sheet, each of said first and second sheets comprising at least one opposing surface formed of alternate ribs and grooves of predetermined width defined by said ribs,
at least one of said grooves comprising at least a portion of a recess leading to at least one edge of the surface of the sheet forming said at least one groove, said sheets being superimposed in opposed rib and groove surface relationship wherein said ribs of said opposing surface of one sheet are in angular relationship to the ribs of the opposing surface of said second sheet to form contacting load bearing portions of ribs of said opposing surfaces and contacting opposed groove portions of said opposing surfaces,
bonding material disposed in said grooves to bond the opposing surfaces of said first and second sheets together, the arrangement of said sheets being such that the bonding material in said grooves forms a fused interconnected monolithic structure comprising single and double thicknesses of said bonding material, and
said rib and groove predetermined widths being of dimensions to define predetermined desired load bearing mating unit areas wherein at least one said load bearing opposed rib contacting portions and at least a portion of one of said groove opposed portions are disposed, and wherein anomalies on the load bearing contacting portions are compensated for by ductile movement of displaced load bearing raised area material into said grooves.

Claims 12-14 are dependent from claim 11 and add that the load bearing areas are distributed in a predetermined pattern, or that the load bearing mating unit areas comprise areas equal to at least a predetermined portion of the area of the end surface of the conductive material connector.

Appellant’s brief describes the invention as follows:

In accordance with the present invention, the opposing surfaces of adjacent sheets and the bonding material structure therebetween are constructed and arranged in a manner which not only solves the problems of solder starvation and surface anomalies, but which also achieves high quality mechanical and electrical interconneetions of particularly high accuracy and reliability. More specifically, and as best shown in Figs. 5 and 6, the invention provides the opposing surface of each of the sheets 11 and 12 with alternate ribs 16 and grooves 17 of predetermined width.

The sheets 11 and 12 are superimposed in angular opposed rib and groove relationship with a bonding material 18 being disposed in the grooves therebetween. Such an alternate rib and groove construction and arrangement provides a particularly rugged and precise opposed contacting relationship for the sheets without interference from the bonding material, and also provides the further important advantage that the bonding material in the grooves forms a fused interconnected monolithic structure having both single and double thicknesses, as best illustrated in FIG. 6. Thus, not only are all portions of the resulting bonding material 18 interconnected so as to provide for greater strength and uniformity, but also, because the interconnected bonding material structure 18 has both single and double thicknesses, the surfaces available for bonding are maximized so as to greatly increase the quality and reliability of the resulting bond. Still further, the alternate rib and groove construction and arrangement is such as to readily provide for at least one of the grooves providing a recess leading to the edge of a sheet. This is of particular advantage in the laminated structure of the present invention, since all excess solder at all locations between the sheets can thus be conveniently and expeditiously removed, via this groove, because of the interconnected nature of the bonding material.

The prior patents relied upon by the examiner and the board are:

Quarnstrom 1,895,133 1933
Stoddard 2,530,552 1950
Sear et al. (Sear) 3,351,816 1967
(filed Feb. 4, 1965)

Sear discloses a stack of interconnected electrically conductive plates having recesses formed in opposed surfaces of the plates and having dielectric material disposed in the recesses with a conductive path being formed between the recesses. Stoddard teaches that plates to be joined may be provided with longitudinal and transverse grooves which provide reservoirs from which the solder cannot be pressed out when the plates are soldered together under heat and pressure. Quarnstrom discloses a solder bond between knurled confronting surfaces of sheet metal and states that the knurled projections on one surface may be placed at random with respect to those on the other surface.

Claims 11 through 14 stand rejected as unpatentable over Sear in view of Quarnstrom and Stoddard under 35 U. S.C. § 103.

The board stated:
* * * Quarnstrom shows in Fig. 1 a solder bond between knurled confronting surfaces of a sheet metal structure, and states on page 2, line 12 that the knurled projections of one surface may be placed at random with respect to those of the other surface. It is very unlikely that all the projections of one surface will fall inside the opposing recesses, or exactly opposite the projections on the other surface. Under these circumstances, the solder in the finished article will be monolithic, with some portions having twice the thickness of others. The ribs and grooves defined in appellant’s claims do not exclude knurled surfaces. We believe it is obvious to workers of ordinary skill in this art that the solder bond of Sear et al can be replaced by the type shown in Quarnstrom, especially in view of Stoddard’s Figs. 14-17 and his general discussion of the soldering problem.
* * * We believe that appellant’s claims do not distinguish from the solder bond described in Quarnstrom, as the latter does produce “an effective bond” (page 1, last line) and some solder is always present between the two overlapped parts, especially if the parts are previously tinned (page 1, line 94). Even if, as appellant urges, Quarnstrom might have some isolated solder portions, such portions would be monolithic and would satisfy the claims.
The knurling of the reference is not “random scoring or roughening,” as suggested by appellant. Knurling is ordinarily a definite pattern. The term “predetermined” in claim 12 does not exclude the knurled pattern of the reference or even a random pattern if one “predetermines” that a random pattern is desired. Similarly, the same term in claim 13 covers any portion of the area.

Appellant contends that the knurling suggested by Quarnstrom does not disclose the alternate rib and groove construction recited in the claims on appeal, and contends that the Quarnstrom alternative disclosure of interfitting corrugations in overlapping edges teaches parallel ribs and grooves rather than the angular disposition claimed. We note that the knurling rollers illustrated in Fig. 2 of Quarnstrom drawings provide a specific cross-ribbing pattern and we also note that the suggested pre-tinning of opposing surfaces would produce solder always present between the overlapped surfaces. We find that Stoddard and Quarnstrom viewed collectively teach that a monolithic structure of stacked layers may be assembled by placing solder in a reticular pattern of grooves in the opposing surfaces of the respective layers, and that opposing layer faces may both be grooved if strengthening of the solder bond is desired.

We agree with the board that it would have been obvious to workers of ordinary skill in this art to replace the solder bond of Sear by the type taught by Quarnstrom, and we agree that it would have been obvious to provide rib and groove opposing surfaces superimposed in angular relationship.

The decision of the board is affirmed.

Affirmed.

BALDWIN, Judge

(concurring).

While I do not agree that the effective disclosure of the proposed combination of references is as broad as is stated by the majority, I do agree with the board that the pertinent recitations in these claims do not differentiate the claimed structure from the Quarnstrom bond. The knurled embodiment shown in Quarnstrom has scored lines or channels crisscrossing to form parrallelograms on both of the surfaces to be joined. Joining these two surfaces in a random manner as also taught by Quarnstrom would result in a monolithic structure which the claim language is broad enough to include. The allegation in appellant’s petition to the board for reconsideration that Quarnstrom’s random embodiment would result in “at least some solder portions that will be isolated so that the required interconnected monolithic structure will not be obtained,” reiterated in his brief, is not factually supported.