text:
    JOHN C. KOHLER CO. v. The UNITED STATES.
    No. 4-73.
    United States Court of Claims.
    June 19, 1974.

      Edwin J. McDermott, Philadelphia, Pa., attorney of record, for plaintiff.
    David R. Schlee, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.
    Before CO WEN, Chief Judge, and SKELTON, and KUNZIG, Judges.
   PER CURIAM:

This case comes before the court on defendant’s request, filed January 3, 1974, for review by the court of the recommended decision, filed October 18, 1973, by Trial Judge Hal D. Cooper pursuant to Rule 166(c) on plaintiff’s motion and defendant’s cross-motion for summary judgment. The court has considered the case on the briefs and oral argument of counsel. Since the court agrees with the said decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, plaintiff’s motion for summary judgment is granted, defendant’s cross-motion for summary judgment is denied and the case is remanded pursuant to Pub.L. 92-415, 28 U.S.C. § 1491, and General Order No. 3 of 1972, to the Department of Agriculture Board of Contract Appeals for a determination of the amount plaintiff is entitled to receive for restoring the boiler to an operable condition. Plaintiff’s counsel is designated to advise the court, by letter to the clerk, of the status of the remand proceedings as provided for in paragraph 9(a) of the General Order, with said advice to be given at intervals of 90 days or less, commencing from the date of this opinion.

OPINION OF TRIAL JUDGE

COOPER, Trial Judge: Plaintiff contracted to install a boiler for defendant. After plaintiff had installed and tested the boiler, but before final payment to plaintiff had been made, defendant took custody of the boiler and operated it from mid-April to July 18, 1967. On July 18, while the paperwork necessary to conclude the contract was being processed, the boiler exploded. The question presented in this Wunderlich Act review is as to which of the parties should bear the cost of repairing the boiler.

Although plaintiff contended the explosion was caused by the negligence of defendant’s operator, the contracting officer assigned the cause of the explosion to defective equipment and required plaintiff, at plaintiff’s expense, to make the repairs necessary to restore the boiler to operating condition. Plaintiff timely appealed the decision of the contracting officer to the Department of Agriculture Board of Contract Appeals (Board). After a full hearing with oral testimony and documentary evidence, the Board concluded that the cause of the explosion could not be determined with reasonable certainty; however, it sustained the decision of the contracting officer, finding that defendant had never accepted the boiler and that plaintiff had failed to discharge its burden of showing that it was not responsible for the explosion.

The matter is before this court on the parties’ cross-motions for summary judgment. From a review of the administrative record, and upon consideration of the motions and arguments in support thereof, it is concluded, for the reasons hereinafter stated, that plaintiff’s motion should be granted and defendant’s cross-motion denied.

I.

Under contract No. 12-14-100-8968(73), plaintiff undertook to perform all work required to remove an existing boiler and install a new “package boiler” in one of defendant’s buildings. By mid-April 1967, the old boiler had been removed and plaintiff had completed installation and testing of the new boiler. On or about April 15, 1967, defendant assumed custody of the boiler and began regular operation of it with its own personnel. From the commencement of its operation, the boiler functioned without mishap until July 17, 1967, when difficulty was experienced in getting the boiler started. It was the next day, July 18, as defendant’s operator commenced the first of the approximately 60 steps necessary to start the boiler, that it exploded.

II.

The first issue presented in this review is as to the cause of the explosion. The Board found that the explosion could have been caused either by operator negligence or defective equipment but concluded that it was not possible to determine with reasonable certainty which of the two actually caused the explosion. This conclusion by the Board, plaintiff asserts, is not supported by substantial evidence.

The controversy as to the cause of the explosion revolves around a steam atomizing switch that is a part of the boiler controls. During start-up of the boiler, it is necessary to use both a light oil gun and a heavy oil gun. The start-up procedures call for the steam atomizing switch to be placed in a “mechanical” position when the light oil gun is in use. Upon removal of the light oil gun and replacement by the heavy oil gun, the operator must turn the steam atomizing switch from the “mechanical” position to the “steam” position. According to defendant’s operator, the explosion occurred within a brief period — 10 to 15 seconds — after the light oil gun had been replaced by the heavy oil gun.

Two facts regarding the atomizing switch are not in substantial dispute. The first is that a Mr. White, an employee of plaintiff’s subcontractor, investigated the explosion on the morning it occurred and found the atomizing switch in the “mechanical” position rather than in the “steam” position. The other fact is that, during defendant’s investigation, it was found that the steam atomizing switch had been wired backwards.

Based on his observation of the atomizing switch, Mr. White’s testimony supported the theory that the explosion was caused by the failure of the operator- to change the atomizing switch from a “mechanical” to a “steam” position when the light oil gun was replaced by the heavy oil gun. Defendant’s expert theorized that the explosion was caused either by operator negligence in failing to turn the atomizing switch or by improper wiring of the atomizing switch.

The operator denied that he had failed to change the steam atomizing switch from the “mechanical” to the “steam” position. His explanation for the switch being in the “mechanical” position was that he turned it back to that position when he was securing the boiler after the explosion had occurred. However, plaintiff introduced evidence that would tend to show that there was no reason to alter the position of the steam atomizing switch after the explosion since this would have no significant effect on the operation of the boiler. This evidence also indicated that it was more desirable to leave the steam atomizing switch in a “steam” position which would have introduced steam to the boiler to smother any fire that may have resulted from the explosion.

The experts for both parties expressed opinions on whether failure to turn the atomizing switch could cause an explosion and whether improper wiring of the switch could result in an explosion. There is testimony supporting the conclusion that, under at least some circumstances, both of the alleged causes could result in an explosion.

From this brief summary of the record, it is apparent that plaintiff is correct in its contention that there is substantial evidence, although largely opinion testimony, that the cause of the explosion was due to operator error. However, there is substantial opinion testimony to the contrary. The difficulty is simply that few measurable, objective facts bearing on the cause of the explosion were available and it was necessary for the witnesses on both sides to theorize as to the cause of the explosion. In view of the operator’s denial that he inadvertently left the switch in the “mechanical” position, and in view of the various theories of the experts testifying for each party, the evidence cannot be said to be conclusive in plaintiff’s favor.

In such circumstances, the importance of the opportunity which the Board had to observe and judge the demeanor of the witnesses cannot be minimized. The Board apparently believed that both of the two proffered theories provided a reasonable and credible explanation for the explosion. Since the Board gave careful consideration to this issue, and since there is substantial evidence in the record supporting both theories, this court, not having the opportunity to judge the credibility of the witnesses testifying in support of each theory, should not substitute its view of the facts for that of the Board. Williamsburg Drapery Co. v. United States, 369 F.2d 729, 733, 177 Ct.Cl. 776, 783 (1966).

Nor does the fact the Board failed to ascertain the cause of the explosion support the conclusion that its decision was either arbitrary or capricious. On review, the test to be applied is whether, on the basis of the evidence before it, the action taken by the Board was a reasonable one. United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Koppers Co. v. United States, 405 F.2d 554, 186 Ct.Cl. 142 (1968). In view of the nature of the evidence presented on this factual issue, it was not unreasonable for the Board to reach the conclusion that it did. Accordingly, the Board’s finding that the cause of the explosion was of uncertain origin is entitled to finality on this review.

III.

The remaining issue is the Board’s conclusion that defendant had not accepted the boiler prior to its explosion and that, under the terms of the contract, plaintiff had the risk of loss until there was acceptance.

The facts pertinent to this issue are not in dispute. As noted previously, plaintiff’s work in installing the boiler was completed by mid-April. Plaintiff then provided instruction in the operation of the boiler for defendant’s employees and, thereafter, defendant operated the boiler under its exclusive control up to the time of the explosion, a period of almost 3 months. It was defendant’s employee who was operating the boiler at the time of the explosion.

It appears that final payment to the contractor had not been made since some of the paperwork was incomplete. The record contains a letter dated June 2, 1967, in which defendant’s superintendent summarized the status of the contract in the following terms:

It appears that you have completed this project except for furnishing payrolls of your painting subcontractor, a small rolling platform ladder and the test reports.

A letter from the contracting officer, dated July 17, 1967, indicates that, as of that date, only paper work involving payrolls remained uncompleted.

The contract contained the usual “responsibility for work” provisions. Under General Provisions, Standard Form 23-A, Section 12, the contractor was to be responsible for all materials and work until the work was accepted by defendant. General Requirement No. 9(b) states that the contractor’s responsibility will terminate “when all work has been completed, the final inspection made and the work accepted * * Under General Requirement No. 19, the final inspection was to be made when the contract work was completed and upon written notice by the contractor as to the date on which the inspection was to be made.

Paragraph 1-5 of the specification required plaintiff to instruct defendant’s employees on the use of the boiler. This instruction was to occur during the week “after the equipment has been accepted and turned over to the Government for regular operation.”

As manifested in these provisions of the contract, the sequence of events contemplated by the parties at the time the contract was made was (1) completion of work on the boiler, (2) notice by plaintiff of readiness for inspection, (3) inspection by defendant, (4) acceptance of the boiler by defendant, (5) turnover of the boiler to defendant for regular operation, and (6) instruction of defendant’s employees by plaintiff.

Plaintiff never gave defendant written notice either that the work was completed or that the boiler was ready for inspection. Nor did defendant ever formally advise plaintiff that it had accepted the boiler. Yet, defendant did take possession. of the boiler and operate it, and plaintiff did provide the required instruction of defendant’s employees, all of which were to occur after acceptance.

Based on these facts, the Board reached the following conclusions: (1) The responsibility for work provisions constituted an express agreement by the parties that plaintiff was to bear the risk of loss up to the time the boiler was accepted by defendant; (2) under the contract, notice by plaintiff that work was completed and ready for inspection, and inspection by defendant, were to precede acceptance; (3) defendant did not waive the notice provision of the contract; (4) the required notice not having been given, and no inspection having been made, defendant could not be said to have accepted the boiler.

Neither party disputes the first and second conclusions of the Board. The dispute here centers on the third and fourth conclusions. Since the questions presented involve the legal consequences flowing from defendant’s actions in taking possession of the boiler and operating it over a prolonged period, as well as an interpretation of the inspection provisions of the contract, the Board’s conclusions on those questions are not binding on the court. Gresham & Co. v. United States, 470 F.2d 542, 200 Ct.Cl. 97 (1972); Paccon, Inc. v. United States, 399 F.2d 162, 169, 185 Ct.Cl. 24, 35 (1968).

As to the contract requirement that plaintiff give defendant written notice when the boiler was installed and ready for inspection, defendant argues that the giving of this notice was an unfulfilled condition precedent to its acceptance of the boiler. Plaintiff urges that defendant, by its actions, waived this notice requirement.

No provision of the contract authorized defendant either to take possession or to operate the boiler prior to the written notification from plaintiff. To the extent the notice was a condition precedent to acceptance of the boiler, it was equally a condition precedent to defendant’s possession and operation of the boiler. Yet, defendant did take possession and did operate the boiler for an extended period.

From these undisputed facts, it is apparent that this is one of those cases where the absence of strict compliance with the notice requirements of the contract is of no consequence. By placing the boiler in operation, defendant rendered unnecessary a written notice from plaintiff that work on the boiler was complete and that the boiler was ready for inspection. No useful purpose would have been served by plaintiff advising defendant of what defendant was already well aware. In short, the failure of the Government to await a written notice from plaintiff before taking possession of the boiler constituted a waiver of the notice provision of the contract. Penn-Ohio Steel Corp. v. United States, 354 F.2d 254, 173 Ct.Cl. 1064 (1965); Copco Steel & Eng’r Co. v. United States, 341 F.2d 590, 598, 169 Ct.Cl. 601, 616 (1965); cf. Roberts v. United States, 357 F.2d 938, 946, 174 Ct.Cl. 940, 952 (1966). Nor, having waived the notice requirement can defendant now revive it and assert it as an impediment to acceptance of the boiler. Cf. Branch Banking & Trust Co. v. United States, 98 F.Supp. 757, 120 Ct.Cl. 72, cert. denied, 342 U.S. 893, 72 S.Ct. 200, 96 L.Ed. 669 (1951).

Notwithstanding waiver of the notice provision, defendant urges that final inspection of the boiler was also an unfulfilled condition precedent to its acceptance of the boiler.

As the Board noted, there is little in the record concerning the final inspection that was to be made. Although expressly providing for a final inspection, the contract does not prescribe the form the inspection was to take. The only testimony on this subject was that of the contracting officer who testified that a project inspector was to make the final inspection and render a report. However, the contract did not, by its terms, require inspection by the project inspector. The mere fact defendant may have intended the inspection to be conducted in a certain manner and by a certain individual is not controlling, for the subjective, unexpressed intentions of one party are not binding on the other. Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 551, 195 Ct.Cl. 21, 30 (1971); Singer-General Precision, Inc. v. United States, 427 F.2d 1187, 1193, 192 Ct.Cl. 435, 446-447 (1970).

What is controlling here is the clear intention of the parties, manifested in the terms of the contract, that defendant was to make its inspection before the boiler was turned over to defendant for regular operation. Since the substance of the inspection was not specified in the contract, defendant had substantial discretion to make such reasonable inspection as it deemed appropriate. However, that discretion was to be exercised before defendant took possession of the boiler. It is insufficient, on the issue of whether a final inspection was made, for defendant to show that, long after it placed the boiler in operation, it intended to have a project inspector make an inspection. Since the inspection was defendant’s responsibility, and since defendant did take possession of the boiler and place it in operation, defendant is in no position to complain that it did not make a final inspection.

There is nothing in the contract that would suggest that the final inspection was to consist of anything more than a visual inspection of the boiler to ensure it was of the type specified in the contract and that it was operational. By its actions in taking possession of the boiler, defendant clearly manifested its satisfaction that the boiler was of the type for which it had contracted. The operability of the boiler was obviously demonstrated to defendant when plaintiff provided training for defendant’s employees. Defendant’s actions in thereafter operating the boiler far beyond any trial period make it plain that defendant was satisfied that the boiler was operational.

It is the substance of these actions, although they may not have borne the label of a final inspection, that demonstrate that defendant made such inspection as it deemed necessary before placing the boiler in operation. Had it wanted to conduct a more comprehensive inspection, it had more than ample opportunity to do so. Instead, and for whatever reason, defendant elected to place the boiler in operation. In so doing, defendant thereby waived whatever additional inspections it may have wanted to make before accepting the boiler.

Defendant urges that 41 C.F.R. § 1-14.101 (a) precludes finding a waiver of the inspection. While that regulation does require an inspection in all cases prior to acceptance, there is nothing in the regulation specifying the type or scope of inspection to be conducted. Indeed, subsection (b) of the same regulation permits substantial discretion as to the type of inspection conducted, providing that “the type and extent of inspection needed depend on the particular procurement.” It may amount to nothing more than a check “for identity, quantity and shipping damage.” 41 C. F.R. § 1-14.101 (b). In this case, it can hardly be disputed that, by taking possession and operating the boiler, defendant necessarily checked the boiler for identity, quantity and absence of shipping damage. Whether a more comprehensive inspection was to be conducted rested within the discretion of the contracting officer; it was not mandated by the regulation.

There remains the question of whether defendant accepted the boiler. Under General Requirements No. 9(b), the boiler was to be accepted “by the Head of the Department or his authorized representative.” The contract is otherwise silent as to the form the acceptance was to take, although plaintiff was to be given a release, presumably in written form. The record is also silent as to who authorized taking possession of the boiler and placing it in operation. However, defendant makes no contention that its use of the boiler was the result of unauthorized acts by its employees. Accordingly, the question is simply whether defendant’s acts of taking possession and operating the boiler constitute an acceptance of the boiler.

The Uniform Commercial Code, § 2-606(1) (c), declares that acceptance of goods occurs when the buyer does any act inconsistent with the seller’s ownership. The most common act which falls under this provision is the retention and use of the goods by the buyer. See, e. g., Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142 (1966). Marbelite Co. v. City of Philadelphia, 208 Pa.Super. 256, 222 A.2d 443 (1966); F. W. Lang Co. v. Fleet, 193 Pa.Super. 365, 165 A.2d 258 (1960).

Here, defendant’s custody of the boiler, its operation of the boiler for its own purposes for over 80 days, its selection of the employees to operate the boiler, its control over when the boiler was operated and for what periods, its determination of the load the boiler was to carry, and the selection of fuel, air and steam ratios to use, are among the factors present here which are inconsistent with ownership by plaintiff. Conversely, the record is barren of any evidence that plaintiff, during the period from mid-April to July 18, had any control over the boiler, or the employees operating it. So far as the record indicates, plaintiff’s only interest in the boiler was in concluding the necessary paperwork so that it would receive payment for the work theretofore completed.

In these circumstances, and as a consequence of its custody and operation of the boiler over a prolonged period, defendant must be deemed to have impliedly accepted the boiler.

The boiler having been accepted by defendant, and the cause of the explosion not having been found to be the fault of plaintiff, it follows that defendant must bear the loss resulting from the explosion. Accordingly, plaintiff is entitled to recover the costs incurred in complying with the contracting officer’s directive to restore the boiler to operating condition.

CONCLUSION

Plaintiff’s motion for summary judgment is granted and defendant’s cross-motion is denied. The case is remanded to the Board for a determination of the amount plaintiff is entitled to receive for restoring the boiler to an operable condition.

      . John C. Kohler Co., 73-1 BOA f 9771 (1972).

      . Defendant’s expert also theorized that the explosion could have been caused by a defective purge valve. However, that theory was rejected by the Board and defendant does not urge it in this review. The record further contains some evidence of oil leakage but the Board did not place any reliance on this evidence.

      . For the effect of responsibility for work provisions on the risk of loss prior to acceptance of the work, see John McShain, Inc. v. United States, 375 F.2d 829, 179 Ct.Cl. 632 (1967); DeArmas v. United States, 70 F.Supp. 605 108 Ct.Cl. 436 (1947); Mittry v. United States, 73 Ct.Cl. 341 (1931).

      . Under paragraph 1-5 of the specification, defendant’s employees were not to be trained until after the boiler had been accepted. This provision is a clear indication that defendant was not to operate the boiler until after notice had been given and the boiler accepted.

      . Under paragraph 1-6 of the specification, actual testing of the boiler to demonstrate conformance with the specification was to be performed by plaintiff. The Board found that plaintiff had performed the tests.

      . The Uniform Commercial Code is applicable to the field of public contracts. Harry Thuresson, Inc. v. United States, 453 F.2d 1278, 197 Ct.Cl. 88 (1972); Northern Helex Co. v. United States, 455 F.2d 546, 197 Ct.Cl. 118 (1972); Everett Plywood & Door Corp. v. United States, 419 F.2d 425, 430, 190 Ct.Cl. 80, 89 (1969).

      . For board decisions in the field of public contracts holding that retention and use by the Government will be deemed an acceptance, see Silent Hoist & Crane Co., 1964 BCA If 4488; Flight Test Eng’r Co., 1962 BCA if 3606; Waterbury Companies, Inc., 61-2 BCA If 3158.

      . Defendant’s reliance on § 2-510(1) of tbe Uniform Commercial Code is misplaced. The Board’s factual findings that the boiler exploded from indeterminate causes precludes an argument that the boiler failed to conform to the contract. Moreover, defendant’s lengthy operation of the boiler undercuts any argument that the boiler was so nonconforming as to give a right of rejection. If it had a right of rejection, it failed timely to exercise that right. Cf. Max Bauer Meat Packer, Inc. v. United States, 458 F.2d 88, 198 Ct.Cl. 97 (1972).


source: Caselaw Access Project

author: BENNETT, Judge:

license: Public Domain

text:
    The SEMINOLE NATION OF OKLAHOMA v. The UNITED STATES.
    Appeal No. 4-73.
    United States Court of Claims.
    June 19, 1974.

      Paul M. Niebell, Washington, D.C., attorney of record, for appellant.
    Bernard J. Rothbaum, Jr:, Washington, D.C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for appellee.
    Before DAVIS, NICHOLS and BENNETT, Judges.
   BENNETT, Judge:

Appellant, the Seminole Nation, appeals from a May 31, 1972 Indian Claims Commission decision vacating a favorable June 24, 1966 order and dismissing appellant’s petition. For reasons which we shall hereafter set out, we affirm the 1972 decision of the Indian Claims Commission.

Appellant brought its original complaint before the Indian Claims Commission on August 6, 1951, seeking judgment for the actual loss it incurred because of the alleged wrongful action of the United States in divesting the Seminole Nation of a one-half interest in the royalties on all minerals recovered from the area encompassed within the former Seminole Reservation established by the Treaty of March 21, 1866. Appellant contended that its tribal right to receive such royalties was reserved under the express terms of the Seminole Agreement between the United States and the Seminole Nation, ratified by Act of July 1, 1898.

Appellant, whose ancestral home was in Florida, was forced to migrate west of the Mississippi into what is now Oklahoma following a war with the United States. As a result of the Treaty of March 21, 1866, appellant held its Indian Territory lands in fee simple. By 1882, appellant owned approximately 365,000 acres of Indian Territory.

In 1893, Congress changed its position with regard to appellant and four other tribes, the Cherokees, Creeks, Choctaws, and Chickasaws, all known collectively as the Five Civilized Tribes, and created the Dawes Commission. It was the assigned duty of this commission to negotiate agreements with the Five Civilized Tribes for allotment and division of their tribal lands among tribe members “to enable the ultimate creation of a State or States of the Union which shall embrace the lands within said India [sic] Territory.”

The Dawes Commission was not immediately successful in securing agreements with the Five Civilized Tribes. After considerable haggling, the agreement between the commission and the Seminóles was entered into in 1897 and approved by Congress on July 1, 1898. The agreement, in pertinent part, provided as follows:

All lands belonging to the Seminole tribe of Indians shall be divided into three classes, designated as first, second, and third class; the first class to be appraised at five dollars, the second class at two dollars and fifty cents, and the third class at one dollar and twenty-five cents per acre, and the same shall be divided among the members of the tribe so that each shall have an equal share thereof in value, so far as may be, the location and fertility of the soil considered; giving to each the right to select his allotment so as to include any improvements thereon, owned by him at the time; and each allottee shall have the sole right of occupancy of the land so allotted to him, during the existence of the present tribal government, and until the members of said tribe shall have become citizens of the United States. Such allotments shall be made under the direction and supervision of the Commission to the Five Civilized Tribes in connection with a representative appointed by the tribal government; and the chairman of said Commission shall execute and deliver to each allottee a certificate describing therein the land allotted to him.
* * * * * -Si-
No lease of any coal, mineral, coal oil, or natural gas within said Nation shall be valid unless made with the tribal government, by and with the consent of the allottee and approved by the Secretary of the Interior.
Should there be discovered on any allotment any coal, mineral, coal oil, or natural gas, and the same should be operated so as to produce royalty, one-half of such royalty shall be paid to such allottee and the remaining half into the tribal treasury until ex-tinguishment of tribal government, and the latter shall be used for the purpose of equalizing the value of allotments ; and if the same be insufficient therefor, any other funds belonging to the tribe, upon extinguishment of tribal government, may be used for such purpose, so that each allotment may be made equal in value as aforesaid.
•X* -X* -X- * * w
When the tribal government shall cease to exist the principal chief last elected by said tribe shall execute under his hand and the seal of the Nation, and deliver to each allottee a deed conveying to him all the right, title, and interest of the said Nation and the members thereof in and to the lands so allotted to him, and the Secretary of the Interior shall approve such deed, and the same shall thereupon operate as relinquishment of the right, title, and interest of the United States in and to the land embraced in said conveyance, and as a guarantee by the United States of the title of said lands to the allottee; and the acceptance of such deed by the allottee shall be a relinquishment of his title to and interest in all other lands belonging to the tribe, except such as may have been excepted from allotment and held in common for other purposes. Each allottee shall designate one tract of forty acres, which shall, by the terms of the deed, be made inalienable and nontaxable as a homestead in perpetuity.
All moneys belonging to the Seminóles remaining after equalizing the value of allotments as herein provided and reserving said sum of five hundred thousand dollars for school fund shall be paid per capita to the members of said tribe in three equal installments, the first to be made as soon as convenient after allotment and extinguishment of tribal government, and the others at one and two years, respectively. Such payments shall be made by a person appointed by the Secretary of the Interior, who shall prescribe the amount of and approve the bond to be given by such person; and strict account shall be given to the Secretary of the Interior for such disbursements. [30 Stat. 567-568.]

As appears evident, from the terms of the agreement, the parties went to great lengths to insure that the allotments to individual Indians would be as equal as possible. Lands known to contain mineral deposits were not allotted to tribe members. These lands instead were leased or sold to private entrepreneurs and the proceeds from such sales were paid into the tribal treasury for eventual per capita distribution. Cf. Seminole Nation v. United States, 102 Ct.Cl. 565, 628 (1944), cert. denied, 326 U.S. 719, 66 S.Ct. 24, 90 L.Ed. 426 (1945); Fish v. Wise, 52 F.2d 544, 545 (10th Cir. 1931), cert. denied, 284 U.S. 688, 52 S.Ct. 265, 76 L.Ed. 581 (1932). Special provision also was made for minerals discovered on allotted lands after allotment and before extinguishment of the tribal government. One-half of the royalties received from the recovery of such minerals was to be paid to the tribal treasury to be used to equalize the value of the allotments, and later, upon extinguishment of the tribal government, for a school fund ($500,000). Whatever remained after establishment of the school fund was to be paid out per capita to members , of the tribe in three equal installments.

Deeds in fee simple were to issue to the allottees “when the tribal government * * * cease[d] to exist * * By statute, this date was first set for March 4, 1906. On March 2, 1906, however, Congress enacted a joint resolution extending the existence of the Five Civilized Tribes:

* * * the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations of Indians in the Indian Territory are hereby continued in full force and effect for all purposes under existing laws until all property of such tribes, or the proceeds thereof, shall be distributed among the individual members of said tribes unless hereafter otherwise provided by law.

Determination to extend the tribal government indefinitely required that some provision be made for final conveyances of allotment deeds. This was done by the Act of April 26, 1906, which provided for the execution of deeds “prior to the time when the Seminole government shall cease to exist.” This implemented the intent of the 1898 Agreement.

Thereafter, on May 27, 1908, Congress passed legislation “[f]or the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, * * *.” Section 11 of this Act spoke to the one-half portion of mineral royalties reserved to the Seminole tribal treasury by the 1898 Agreement:

Sec. 11. That all royalties arising on and after Jury first, nineteen hundred and eight, from mineral leases of allotted Seminole lands heretofore or hereafter made, which are subject to the supervision of the Secretary of the Interior, shall.be paid to the United States Indian agent, Union Agency, for the benefit of the Indian lessor or his proper representative to whom such royalties shall thereafter belong; and no such lease shall be made after said date except with the allottee or owner of the land: Provided, That the interest of the Seminole Nation in leases or royalties arising thereunder on all allotted lands shall cease on June thirtieth, nineteen hundred and eight.

Thus, though the tribal government continued to exist for some purposes, the Act of 1908 terminated the tribe’s one-half interest in mineral royalties and vested that property right in the owners of the fee. As such, the 1908 Act was consistent with the purpose of the 1898 Agreement — to transfer Indian territory land in fee to individual Indian allottees in preparation for statehood.

Appellant disagrees with this analysis. It bases its claim on its interpretation of the legislative history here involved and the aforementioned 1966 order of the Indian Claims Commission. Appellant’s claim is that the 1898 Seminole Agreement, while allotting the surface of the Seminole tribal domain to the enrolled tribe members, and giving each allottee a one-half interest in the minerals under his allotment, reserved one-half of the royalties on all minerals recovered from the allotted lands to the Seminole Nation as long as that nation remained in existence. Appellant argues that the United States assumed full administrative control over the Seminole Nation by terms of the 1898 Agreement and consequently was under a duty to manage and protect tribal property, including the one-half interest in the mineral royalties. Appellant maintains that the Seminole tribal government was extended by the Act of March 2, 1906, and that such extension, never having been revoked, is controlling here. Appellant dismisses the 1908 Act and its language terminating the tribal right to one-half the mineral royalties as an act passed in violation of the “fair and honorable” dealings clause — section 2, clause 5, of the Indian Claims Commission Act of 1946. Such contention, appellant asserts, is supported by the 1966 Indian Claims Commission order in this case.

Appellant timely filed a petition before the Indian Claims Commission on August 6, 1951. The matter thereafter proceeded in due course to a trial on the merits. On June 24, 1966, the Indian Claims Commission issued an opinion and findings in appellant’s favor. The commissioner’s decision was critical of the efforts of the Commissioner of Indian Affairs with respect to the inclusion of section 11 in the 1908 Act. As the commission found:

* * * the Commissioner of Indian Affairs did not advance the entire Section 11 as whole before the Senate Committee on Indian Affairs, but offered the proviso separately and surreptitiously at a stage in the proceedings where no minutes were being maintained and where consequent debate was unlikely. And finally, the section and proviso were apparently offered as a mere correction of a minor inconsistency and not as a major and far-reaching unilateral change in an existing agreement or treaty statute. [17 Ind.Cl.Comm. at 74.]

The commission absolved the Dawes Commission of culpability because it could not have known that Seminole land allotments had oil or gas deposits which were not found in commercial quantities until more than 25 years later. Fish v. Wise, supra, 52 F.2d at 545. But, it held that the acts of the Commissioner of Indian Affairs in persuading Congress to accept section 11, supra, “were inconsistent with the concept of fair and honorable dealings contemplated by Clause 5 of Section 2 of the Indian Claims Commission Act of 1946.” 17 Ind.Cl.Comm. at 75. The commission did not rule on some other issues raised in the case such as whether it was a tribal claim, or whether the 1908 statute was inconsistent with the Seminole Agreement of 1898. The 1966 decision emphasized that no “theory of recovery or of computation of damages has been urged by the plaintiff to date. Hence, the commission must proceed on the assumption that if a justiciable controversy exists, the plaintiff will undertake to establish a viable theory of recovery and measure of damages at some future date.” 17 Ind.Cl.Comm. at 82-83. A hearing was ordered on the issue of damages claimed to have been suffered as a result of actions of the Commissioner of Indian Affairs and Congress in connection with enactment of the 1908 public law.

At the hearing on damages on March 10, 1969, appellant presented evidence on the actual value of one-half of the oil and gas royalties allegedly due from 1923 to 1968, but previously paid to individual Seminole allottees or their transferees pursuant to public law. The claimed sums were said to exceed 95 million dollars. Appellee objected to such evidence on grounds of relevancy and materiality. Since appellant offered no evidence relating to the May 27, 1908 value of the property, appellee filed a motion to dismiss on the ground that appellant had failed to show any actual damages as of the date of alleged deprivation. This motion was denied and appellee was ordered to file requested findings of fact, objections and briefs on the issue of damages. Appellee complied with this order on January 12, 1972, under protest, and appellant thereafter filed a reply brief on January 26, 1972.

In examining the question of damages, the commission reconsidered the entire record in this case and the issues raised but not decided in 1966, and ultimately issued a decision reversing its 1966 holding and dismissing the petition. Appellant is now before this court appealing the May 31, 1972 order vacating the opinion, findings and interlocutory order of June 24, 1966, which had been in appellant’s favor.

In its 1972 decision, the commission met, head-on, the fundamental issues avoided in 1966 and concluded that “no compensable property right [was] created and vested in the Seminole Nation pursuant to the Seminole Agreement of 1898.” 28 Ind.Cl.Comm. at 123. It was decided that to have had any vested tribal interest in the mineral royalties would have been contrary to the ultimate purpose of the 1898 Act — -division and allotment. The equalization fund established in the 1898 Agreement was created for a limited period of time for the purpose of insuring that the allotment would be as equal as possible for individual Seminole allottees. From the conclusion that appellant had no compensable property right created in 1898, it was reasoned that none existed which could have been divested in 1908. With respect to the actions of the Commissioner of Indian Affairs, the prevailing opinion held that he had not been involved in any “improper conduct” and that he had merely been acting in his “ministerial capacity” to carry out what had been intended by the 1898 Seminole Agreement and that the evidence did not support the 1966 findings to the contrary. As to section 11 of the 1908 Act, it was said to be simply to clarify the payment of royalties and the Government derived no benefit from it. It was further found that nothing in connection with the passage of the 1908 Act could give rise to a cause of action under section 2, clause 5, of the Indian Claims Commission Act. The prevailing opinion said “[e]very effort was made to provide for allotments which were equal in value. Further, any failure to allot each member a mathematically equal share would merely affect the personal property interests of the individual Seminole allottees. Such individual claims are beyond this Commission’s jurisdiction, * * 28 Ind.Cl.Comm. at 128. Finally, the commission rejected the notion that the Dawes Commission had acted wrongfully in dividing the Seminole lands by value without taking into account the value of the latent oil deposits within some allotments. “The Dawes Commission could not have known that any of the allotments included oil deposits.” 28 Ind.Cl.Comm. at 128.

Pursuant to its decision, the commission vacated its previous findings and opinion and dismissed appellant’s petition.

The commission’s decision was not unanimous. One commissioner concurred in the result on account of appellant’s failure to prove damages as of 1908. Two commissioners dissented from the commission’s decision. It was their opinion that the 1966 findings of fact and opinion were proper and justified and should not be set aside. Appellant’s motion for rehearing was denied by the commission on January 26, 1973.

Appellant thereafter filed an appeal in this court criticizing the factual determinations made by the commission in its 1972 opinion, contending that the commission had used technical legal principles to reject a valid “fair and honorable dealings” claim and asserting that the 1898 Seminole Agreement gave the Seminole Nation a vested interest in one-half of the mineral royalties taken from allotted lands, that the 1908 Act was not passed in good faith, and that its proof of actual damages suffered by the Seminole Nation was not erroneous since such damages were a direct consequence of appellee’s wrongful act.

Appellee responded to appellant’s claims, contending that it was this court’s duty to consider only whether the 1972 commission decision was supported by substantial evidence and was in accord with applicable law. For reasons which follow, we agree with appellee and hold that the May 31, 1972 decision of the Indian Claims Commission was correct.

In the first place, this court has held in Confederated Tribes of Warm Springs Reservation v. United States, 177 Ct.Cl. 184 (1966), that an administrative tribunal has the right to vacate a previous judgment and enter a new decision as long as such a matter. is still within the ken of the agency’s jurisdiction and it acts within a reasonable time on a rational basis. In Warm Springs, the commission issued an order favorable to appellants on June 10, 1960. Appellee thereafter filed a motion for rehearing which was denied on October 10, 1963. At the same time it denied the motion for rehearing, however, the commission set aside its 1960 findings and order and entered a new order, together with new findings of fact and conclusions of law. As in the present case, the new order was less favorable to appellant than the original order. In support of its decision, this court quoted language from Shein v. United States, 102 F.Supp. 320, 323 (1951), aff’d, 343 U.S. 944, 72 S.Ct. 1043, 96 L.Ed. 1349 (1952):

* * * “If upon deeper research, fuller reflection and consideration, the judicial or quasi-judicial body would see a mistake but persist in it, this would amount to mere obstinacy or stubbornness and foster the highest form of injustice.” [177 Ct.Cl. at 192.]

In Shein, the Interstate Commerce Commission, acting on a motion for reconsideration by an intervenor and without taking any new evidence, reconsidered and revised an earlier holding.

In Warm Springs, this court viewed its function as one of determining whether there had been an abuse of discretion or a failure to exercise discretion on the part of the administrative body. The court held that once a rational basis for the revised opinion had been found, the reviewing function of this court ended. 177 Ct.Cl. at 192. Once the original order had been vacated by the subsequent order, the original order became legally “nonexistent” and “not subject to appeal.” 177 Ct.Cl. at 193.

The analysis employed in Warm Springs is supported by our recent opinion in Gila River Pima-Maricopa Indian Community v. United States, 494 F.2d 1386, 1393, 204 Ct.Cl. -, -.

* * * As the expert in this field charged with primary responsibility, the Commission is the tribunal to exercise this discretion; all the court can or should do is to oversee and keep it within rational bounds. Cf. The Snake or Piute Indians v. United States, 112 F.Supp. 543, 125 Ct.Cl. 241, 254-255 (1953).

In reviewing the May 31, 1972 commission decision, this court must look to the manner in which that body exercised the discretion granted it in the Indian Claims Commission Act of 1946. As soon as a rational basis can be found for the commission’s decision, this court’s reviewing function is complete. For purposes of our consideration, the 1966 order of the Indian Claims Commission shall have no force or effect. It is a nullity.

In the first part of its brief to the court, appellant has attempted to have this court retry factual matters already determined by the commission in its 1972 findings of fact and prevailing opinion. Appellant bases its argument, to a large extent, on the 1966 opinion in this case, a decision which we have ruled to be “nonexistent” for purposes of our analysis here. Since only the 1972 opinion is presently before the court and since we agree with the commission’s conclusion that the Commissioner of Indian Affairs was acting in his ministerial capacity in carrying out the purpose of the 1898 Seminole Agreement when he caused the aforementioned section 11 to be included in the Act of May 27, 1908, we must reject appellant’s argument that the majority of the commission erred in failing to find essential facts necessary for the proper determination of this case. What appellant has really requested this court to do is to reweign, de novo, the evidence presented to the commission. Such action would not be proper. 25 U.S.C. § 70s(b) provides in part:

* * * On said appeal the Court shall determine whether the findings of fact of the Commission are supported by substantial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting “fair and honorable dealings”, where applicable, * * * are valid and supported by the Commission’s findings of fact.

With respect to this statutory provision, the court has indicated that—

* * * our responsibility ends when we are satisfied that the findings of the Indian Claims Commission are supported by substantial evidence. That we might have reached a contrary result on the evidence introduced is not the test. * * *. [United States v. Seminole Nation, 173 F.Supp. 784, 790, 146 Ct.Cl. 171, 180 (1959). Cf. Lummi Tribe v. United States, 181 Ct.Cl. 753, 757 (1967).]

Since we are convinced that the commission had a rational basis for concluding that, the 1908 legislation was a necessary evolution of the 1898 Seminole Agreement, we must reject appellant’s contentions.

Appellant’s argument that this court should not employ technical legal principles to reject a moral claim based upon “fair and honorable dealings” must also be rejected since appellant has no “moral claim” here. Whatever “moral claim” appellant might have had in this matter went by the board when the commission vacated its 1966 judgment concerning a violation of the “fair and honorable dealings” clause of the Indian Claims Commission Act of 1946. Since the prevailing opinion of May 31, 1972, now before the court, states there was no violation of the “fair and honorable dealings” clause — • and that conclusion is based on substantial evidence — and is correct — appellant’s argument must be rejected. As has been noted in other opinions of this court, the Indian Claims Commission Act is not a “catchall” for all deprivation — physical, psychological, social, economic and cultural — visited upon the Indian people as a result of the actions of the United States. Rather, the act is a “synthesis of those ‘ * * * classes of eases * * * which * * * heretofore received congressional consideration in the form of special jurisdictional acts.” Gila River Pima-Maricopa Indian Community v. United States, 427 F.2d 1194, 1200, 190 Ct.Cl. 790, 801, cert. denied, 400 U.S. 819, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970).

Appellant contends that by the terms of the 1898 Seminole Agreement, the Seminole Nation received a vested interest in a one-half portion of the mineral royalties recovered from Seminole tribal lands and that such interest could not be arbitrarily abrogated by the 1908 statute. Cf. Choate v. Trapp, 224 U.S. 665, 674, 32 S.Ct. 565, 56 L.Ed. 941 (1912). Such an argument is incorrect a,b initio. In Choate v. Trapp, the Supreme Court considered the tax exempt status of property allotted to individual Indians pursuant to the Atoka Agreement negotiated between the Dawes Commission and two of the Five Civilized Tribes in 1897 and approved by Congress as part of the Curtis Act on June 28, 1898. The Court ruled that Congress could not, by statute, lift the tax exemption without engaging in a taking barred by the Fifth Amendment. In the instant case, the Seminole Nation was impressed only with the duty to maintain royalty funds until such could be paid to individual Seminole allottees. No vested right, similar to the tax exemption granted as part of the Atoka Agreement, accrued to the Seminole Nation as part of the 1898 Seminole Agreement. The 1898 Agreement established only an “equalization fund” to provide a means by which allotments made to individual Indians could be equalized as to value. As such, the Seminole Nation served only as a temporary stakeholder with respect to the interests of its member-allottees. In the 1908 legislation, Congress indicated that the purpose of having such a temporary stakeholder had been satisfied and that such funds as had formerly been turned over to the Seminole Nation for allotment equalization should thereafter be paid direct to the individual allottees.

Our conclusion in this instance is supported by the Tenth Circuit’s opinion in Moore v. Carter Oil Co., 43 F.2d 322 (10th Cir. 1930), cert. denied, 282 U.S. 903, 51 S.Ct. 216, 75 L.Ed. 795 (1931), wherein that court considered the same provisions of the 1898 Agreement and the 1908 Act as are here involved.

* * * -phg ¡nference that the allottee should receive all of the royalty on the expiration of the temporary period is unavoidable; else what purpose can be attributed to the * * * paragraph, which gave the allottee a right to title in fee at the expiration of the temporary period and debars the Nation and all its other members of any right, title or interest therein.
* * * Later Congress passed the Act of May 27, 1908 (35 Stat. 312), in the eleventh section of which it expressed in substance its finding that the special purpose of paying one-half of the royalties under mineral leases into the tribal treasury had been accomplished, * * *. [Emphasis supplied. 43 F.2d at 325.]

Cf. Goat v. United States, 224 U.S. 458, 32 S.Ct. 544, 56 L.Ed. 841 (1912); Fish v. Wise, supra.

Congress consequently declared, in section 11, that the Seminole Nation’s interest in the leases or the royalties arising under the leases would be terminated as of June 30, 1908, directed that royalties arising thereafter go directly to the allottees of the land or their proper representatives, and ordered that no such lease should be made after June 30, 1908, except with the allottee or owner of a particular allotment. Ch. 199, § 11, 35 Stat. 316; 43 F.2d at 325.

Indeed, the Indian Claims Commission reached an identical conclusion in its consideration of appellant’s claim:

The Seminole equalization fund was created for the special purpose of equalizing the value of the allotments. And the payments of one-half of the royalties from allotted lands were to cease when the conveyances were made to the allottees. '* * *. It is clear from the negotiations and the agreement itself, particularly those provisions requiring per capita payments of all remaining tribal funds, that the intent of all the parties was that all property interest would vest in the allottees and that the allottees would in return relinquish any interest in other tribal lands. To have vested any mineral estate in the tribe would have been contrary to the manifest intent 'of dissolving the tribal government and ending the communal system of land ownership. [28 Ind. Cl.Comm. at 123-24.]

Appellant’s attempt to distinguish Moore by reason of the fact that it was decided prior to passage of the Indian Claims Commission Act is without merit. The court in Moore determined the effect of the 1898 Seminole Agreement and subsequent legislation regarding the one-half portion of mineral royalties. Absent a determination of a violation of the “fair and honorable dealings” clause, the applicability of Moore was in no way affected by passage of the Indian Claims Commission Act.

Appellant’s reliance on the commission’s 1966 decision is misplaced. This court has only the obligation to review the 1972 commission decision under standards already enunciated in this opinion. Suquamish Tribe v. United States, 197 Ct.Cl. 775 (1972). Our review of the 1972 opinion convinces us that it was rationally concluded that the Commissioner of Indian Affairs acted pursuant to the ministerial powers granted him in the 1898 Agreement when he sought to obtain passage of the 1908 legislation. This conclusion represents no abuse of discretion.

Even if this court had found that appellant’s rights had been violated, it would not be possible for this court to determine that any damages were actually due the Seminole Nation as a result of defendant’s actions. Appellant was acting as a mere stakeholder under the 1898 Seminole Agreement. That agreement directed that the one-half-the-royalties fund paid to appellant—

* * * shall be used for the purpose of equalizing the value of allotments ;
* * * -X- -X-
All moneys belonging to the Seminóles remaining after equalizing the value of allotments as herein provided and reserving said sum of five hundred thousand dollars for school fund shall be paid per capita to the members of said tribe in three equal installments, * * * [Ch. 542, 30 Stat. 567-568 (1898). Emphasis supplied.]

In effect the agreement established an express trust with the tribal government as trustee and the individual allottees as beneficiaries. No rights vested in the tribal government, only duties. Appellant, in its own right, had no independent property interest redressable in this court. It was required to distribute all royalties which it received. The effect of the 1908 legislation was to terminate the equalization fund and cause a final distribution of the corpus, as provided above. The appellee created the trust and in the exercise of proper discretion could and did terminate it on whatever grounds would best serve the beneficiaries. It was not an irrevocable trust, and appellant was not a beneficiary of it.

As our determinations thus far have indicated, the Act of May 27, 1908, was simply an implementing statute designed to carry into effect the purpose of the 1898 Seminole Agreement, according to its express terms. Congress and the Commissioner of Indian Affairs acted in good faith in terminating the equalization fund. Their actions in no way violated the “fair and honorable dealings” provision of the Indian Claims Commission Act of 1946. On the contrary, their actions were designed to make it possible for the individual Seminole allottees to receive all the royalties just as had been done for the Indians of the other four Civilized Tribes. The 1898 Agreement with the Seminóles had differed from arrangements with the other tribes in that particular. This is the explanation given to the Secretary of the Interior in his 1908 report by the Commissioner of Indian Affairs describing the purpose of section 11 of the 1908 Act. The prevailing commission opinion has rightly rejected appellant’s argument and the 1966 finding that this amounted to some sort of fraud or conspiracy between the Commissioner of Indian Affairs and Congress to defraud appellants of a vested right by enactment of the 1908 law, even assuming the speculation as to the motivation of Congress in enacting a statute is a permissible subject of judicial inquiry. Appellants have cited no cases to demonstrate that the Indian Claims Commission Act of August 13, 1946, 60 Stat. 1049, 25 U. S.C. § 70 et seq., vitiates the established rule to the contrary. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1809). See also Palmer v. Thompson, 403 U.S. 217, 224-226, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); United States v. O’Brien, 391 U.S. 367, 383-385, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Arizona v. California, 283 U.S. 423, 455-456, 51 S.Ct. 522, 75 L.Ed. 1154 (1931).

In his separate concurring opinion, Commissioner Yarborough pointed out that under appellant’s theory of the case, tribal property was wrongfully taken on June 30, 1908. As a result, since no vestige of any sort of tribal interest in the royalty fund remained after that date, it is necessary that appellant prove damages as of June 30, 1908. United States v. Klamath & Moadoc Tribes, 304 U.S. 119, 123-124, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). Cf. Klamath & Modoc Tribes v. United States, 436 F.2d 1008, 1020, 93 Ct.Cl. 670, 693 (1971). In Shoshone Indians v. United States, 85 Ct.Cl. 331 (1937), aff’d, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938), a pre-1946 “moral claim” upon which Congress had specifically allowed suit, this court held that valuation must be determined on the date of the taking. This rule of law is unquestioned in taking eases and is no less viable in this claim for a breach of fair and honorable dealings predicated on an alleged taking. Since no violation of the Indian Claims Commission Act is involved, the date of the alleged taking, June 30, 1908, must be the pertinent date here. Since appellant failed to prove any damages as of this date in its hearing before the Indian Claims Commission, its claim would have to be rejected or remanded for further proof if liability were found under some theory. The dissenters address the issue of valuation with studied silence. As heretofore noted, the 1966 decision provided that “on the assumption that if a justiciable controversy exists, the plaintiff will undertake to establish a viable theory of recovery and measure of damages.” The assumption of a justiciable controversy not having been established on the commission’s ultimate consideration of the whole record, and no viable theory of recovery or measurement of damages having been satisfied by appellant’s proof, its claim must fail.

For the reasons given, we affirm the May 31, 1972 order of the Indian Claims Commission directing that appellant’s petition be dismissed.

Affirmed.

      . 28 Ind.Cl.Comm. 117 (1972).

      . 17 Ind.Cl.Comm. 67 (1966).

      . 14 Stat. 755 (1866).

      . Ch. 542, 30 Stat. 567 (1898).

      . 14 Stat. 755 (1866).

      . Appellant acquired an additional area of 175,000 acres east and contiguous to its original tract under the Act of Aug. 5, 1882, ch. 390, 22 Stat. 257, 265.

      . Seminole Nation v. United States, 102 Ct.Cl. 565, 589-592, 617-624, 632 (1944), cert. denied, 326 U.S. 719, 66 S.Ct. 24, 90 L.Ed. 426 (1945); Creek Nation v. United States, 93 Ct.Cl. 561 (1941).

      . Act of March 3, 1893, ch. 209, § 16, 27 Stat. 645.

      . Ch. 209, § 16, 27 Stat. 645 (1893).

      . Oh. 542, 30 Stat. 567 (1898); hereinafter sometimes the 1898 Agreement.

      . Act of March 3, 1903, ch. 994, § 8, 32 Stat. 1008.

      . Res. 7 of March 2, 1906, 34 Stat. 822.

      . Oh. 1876, § 6, 34 Stat. 139 (1906).

      . Act of May 27,. 1908, ch. 199, 35 Stat. 312; hereinafter sometimes the 1908 Act.

      . Ch. 199, § 11, 35 Stat. 316 (1908).

      . 25 U.S.C. § 70a; ch. 959, § 2, 60 Stat. 1050 (1946).

      . 17 Ind.Cl.Comm. 67 (1966).

      . Id.

      . 28 Ind.Cl.Comm. 117 (1972).

      . Appellant has argued that the appeal presents 13 questions for review. We consider those necessary for deciding the appeal.

      . 25 U.S.C. § 70 et seq., eh. 959, 60 Stat. 1049 (1946).

      . Ch. 517, 30 Stat. 505 (1898).


author: RICH, Judge. ALMOND, Senior Judge,

text:
    Application of KOPY KAT, INC.
    Patent Appeal No. 9252.
    United States Court of Customs and Patent Appeals.
    July 3, 1974.
    Andrew R. Klein, Philadelphia, Pa. (Synnestvedt & Lechner, Philadelphia, Pa.), attorney of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; R. V. Lupo, Washington, D. C., of counsel.

      Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Associate Judges, and ALMOND, Senior Judge.
   RICH, Judge.

This appeal is from the affirmance by the Patent Office Trademark Trial and Appeal Board of the ex parte rejection of an application, serial No. 331,626, filed July 2, 1969, to register on the Principal Register the service mark reproduced below for “rendering advice and assistance in connection with the establishment and/or operation of printing businesses.” We reverse.

The examiner rejected the application on the following two grounds, both affirmed by the board: (1) that the expression “WE PRINT-IT IN A MIN-IT” is merely descriptive within the meaning of section 2(e)(1) of the Trademark Act (15 U.S.C. § 1052(e) (1)) and therefore must be disclaimed in accordance with section 6 (15 U.S.C. § 1056), which appellant refused to do; and (2) that the subject matter is confusingly similar to the subject matter of Registration No. 868,509, within the meaning of section 2(d) (15 U.S.C. § 1052(d)), which subject matter is as follows:

This mark was registered on April 22, 1969, to Copy Cat Educational Services, Inc., of Cambridge, Mass., as a service mark. The services named are “GRAPHIC REPRODUCTION SERVICES.”

OPINION

The Slogan Portion of the Mark

We do not agree that the slogan, “WE PRINT-IT IN A MIN-IT,” falls within section 2(e)(1) which provides, in relevant part, that registration shall not be granted of a mark “which, (1) when applied to the goods of the applicant is merely descriptive * * * of them.” These words were written, of course, with respect to trademarks but in view of section 3 (15 U.S.C. § 1053), which states that service marks are registrable subject to the provisions relating to the registration of trademarks, the word “goods” must be read as comprehending services.

As appellant has pointed out, the Patent Office has produced nothing to show that the slogan describes any services or has ever been used by anyone before. It is merely the opinion of the examiner and the board that the slogan is “merely descriptive,” which is, in our judgment, a question of law. The slogan is, obviously, highly suggestive of speed with respect to some kind of printing service, but one cannot tell what kind. It could be printing photographs, or printing with type, or making photostatic, xerographic, lithographic, photo offset, or other copies. The slogan is a rhyming couplet and distinctive in its use of hyphens in “PRINT-IT” and “MIN-IT” and the misspelling of the latter.

The solicitor would have us disregard peculiarities of spelling and hyphenation and treat the slogan simply as saying “we print it in a minute.” Then he argues:

It is obviously of no consequence what specific type of printing service might be identified with the mark. The slogan simply says what it says — no more, no less — and its clear meaning is merely descriptive of the services because it identifies the services rather than identifying the source of those services.

We do not agree that the slogan identifies the services. We think it is clear from mere inspection why it does not, even when viewed as the solicitor would have us view it.

Appellant cited to the board a number of cases, which neither the board nor the solicitor has mentioned. We think they are in point. They include: American Enka Corp. v. Marzall, 92 USPQ 111 (DC DC 1952), wherein the court disapproved the refusal to register a composite mark including the slogan “THE FATE OF A FABRIC HANGS BY A THREAD” for rayon yarn unless the slogan was disclaimed; Ex parte Robbins & Myers, Inc., 104 USPQ 403 (Commr.Pats.1955), in which “Moving Air is Our Business” for electric fans was held registrable on the Principal Register; Ex parte Redmond Co., 117 USPQ 484 (Commr.Pats.1958), in which “THE BIG NAME IN SMALL MOTORS” for electric motors was held registrable; and In re Joseph Bancroft & Sons Co., 129 USPQ 329 (TTAB 1961), wherein “THE TEST IS IN THE TOUCH” for knitted underwear, outerwear, and hosiery was held registrable although the board said that the slogan “may, in effect, recite a factor to be considered in making a determination of quality merchandise.” To these cases we add our recent decision in Roux Laboratories, Inc. v. Clairol Inc., 427 F.2d 823, 57 CCPA 1173 (1970), holding, inter alia, that the slogan “Hair Color So Natural Only Her Hairdresser Knows for Sure” for hair dye is not “merely descriptive” under section 2(e)(1). For additional cases, see “Slogans — -Tests as Trademarks,” by Cameron K. Wehringer, 52 JPOS 781 (1970). Under these precedents, appellant’s slogan has the capacity to identify appellant’s services and distinguish them from the services of others.

Since the slogan portion of appellant’s composite mark is not merely descriptive of appellant’s services, it was improper for the examiner to require its disclaimer on that ground, from which it follows that the rejection predicated on the refusal to disclaim was in error.

The Issue of Confusing Similarity

The issue under section 2(d) as to whether concurrent use of appellant’s mark and the mark of the reference on the services named in the application and registration,' respectively, would be likely to cause confusion or mistake or to deceive, must be adjudged by comparison of the marks as a whole. The .solicitor agrees with this principle and observes, correctly, that this is a subjective determination. We think that the two marks are so utterly different in appearance that, from that standpoint, there is not the slightest likelihood of confusion, mistake, or deception. Being design marks, that is the main consideration.

The only thing the two marks have in common is what might be termed the copy eat theme. “Copy-cat” is a well-known dictionary term — a part of commonplace speech — meaning an imitator or one who copies slavishly. The reference registrant employs these words in its composite mark in setting forth its trade name, Copy Cat Educational Services Inc., and includes them again, very inconspicuously, on the picture on the easel. Nothing in the mark itself or the registration document indicates that the registrant claims any trademark or service mark rights in the words “Copy Cat.” Registrant’s development of the theme is utterly different from appellant’s development. We do not feel that the reference registrant, by virtue of the registration, has exclusive rights with respect to every development of the theme or every use of the words. We agree with appellant that its composite mark is about as different from the registered mark “as two cat caricatures could possibly be made to be.” As for the words themselves, appellant has used a different spelling and distinctive typography.

In the final analysis, the question is whether the language of section 2(d), “so resembles a mark registered in the Patent Office * * * as to be likely, when applied to the goods [services] of the applicant, to cause confusion, or to cause mistake, or to deceive” (our emphasis), compels the Office to refuse registration. We think it does not, on the basis of our consideration of all aspects of the marks as a whole and the probable reaction thereto by the purchasing public.

The decision of the board is reversed.

Reversed.

ALMOND, Senior Judge,

dissenting, with whom BALDWIN, Judge, joins.

I would affirm the decision of the Trademark Trial and Appeal Board.

With respect to the slogan portion of the mark, it is pertinent to point out that the printing business to which the service mark is applicable is a photolithographic printing service. Furthermore, that the service to be rendered under the mark is a high speed one is obvious from the record. In view of these facts and the common usage of the word “minute” to connote a period of time of brief span, I regard the slogan as being a phrase, albeit a catchy one, that is descriptive of the service to be rendered.

That such a phrase might be applicable to other high speed reproduction services is stressed by the majority. I personally doubt that rapid photo print and type setting services would ever advertise that they could “print it in a minute.” Nevertheless, that the slogan is applicable to more than one kind of printing service seems to me irrelevant particularly in view of the description of the service defined in the application as having to do with “printing businesses.” That term would no doubt encompass most, if not all, of the printing services recited by the majority.

I would also affirm the board’s decision regarding the issue of likelihood of confusion. The majority acknowledges that the marks share a common “copy cat theme.” I personally would agree that there is little or no likelihood that customers would confuse the marks. However, we must address the broader question which is whether the marks will confuse customers. See, e. g., In re West Point-Pepperell, Inc., 468 F.2d 200 (Cust. & Pat.App.1972).

I believe that persons are used to seeing a common trademark theme in different formats and associating them with the same source. In this regard, see Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 50 CCPA 1120 (1962). In the instant case, each mark employs caricatures of cats in a design mark for related services. I think that there exists the likelihood that users of these services would be confused by being led to believe that the marks indicate a common source for related services.

      . Abstracted at 178 USPQ 64, decided March 7, 1973.

      . The amended application, in addition to this recitation of appellant’s services, contains the following paragraph:
      The mark is also used to identify printing services rendered by related companies, eacli of which is controlled with respect to the nature and quality of the services with which the mark is used by reason of a license agreement issued by applicant, and by reason of advisory and supervisory services furnished pursuant thereto by applicant.


author: MILLER, Judge.

text:
    Victor DeCOSTA, Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., Appellee.
    Patent Appeal No. 9211.
    United States Court of Customs and Patent Appeals.
    June 13, 1974.
    Rehearing Denied Aug 22, 1974.
    Leonard Michaelson, Salter & Miehaelson, Providence, R. I., attorney of record, for appellant.
    Joseph D. Garon, New York City, attorney of record, for appellee; Brumbaugh, Graves, Donohue & Raymond, New York City, of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.
   MILLER, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board (abstracted at 176 USPQ 498 (1972)) granting opposer-appellee's motion for summary judgment and denying applicant-appellant’s cross-motion for summary judgment, with the result that the opposition was sustained and the registration refused. We reverse and remand.

The decision of the board was premised on estoppel of applicant-appellant from seeking to register the service mark here involved (shown below), because he had previously sought to register such mark for essentially identical services and had not taken an appeal from a default judgment entered against him on November 23, 1964, sustaining an opposition which had been filed by the opposer-appellee in this action.

It should be noted that in June of 1963 appellant filed a civil action in the U.S. District Court for the District of Rhode Island against appellee for misappropriation of character. He received a jury verdict (apparently subsequent to the default judgment entered by the board on November 23, 1964), from which appellee here took an appeal to the U.S. Court of Appeals for the First Circuit. That court rendered its decision on May 11, 1967, long after the above-referred-to default judgment entered by the board. Thus the record before the board at the time of the default judgment contained only the pleadings in the civil action before the district court.

Appellant argues that the Court of Appeals for the First Circuit found that he had acquired the right of ownership and priority of use in the service mark, although it reversed the district court’s allowance of a remedy for misappropriation of character; that the Patent Office is bound by a finding of a federal court, because federal courts, which determine the right to use, ultimately determine the right to register; and that appellee (by its motion for summary judgment) has admitted that the issues of the opposition are the same as those decided by the Court of Appeals for the First Circuit.

Appellee responds that the court of appeals merely found that appellant was the first user, but not of the mark as a service mark; whereas the board’s default judgment, in effect, found appellee to be the first user of the mark as a service mark. Therefore, appellee argues, there is no inconsistency between the finding of the court of appeals and the finding of the board implicit in said default judgment.

The difficulty with appellee’s position is that by its motion for summary judgment it admitted the truth of appellant’s averment in its answer to appellee’s opposition, namely:

. that the issue of the misappropriation of the idea and character was decided [in the United States District Court for the District of Rhode Island] in favor of applicant; although, the First Circuit Court of Appeals in its decision . . . did determine that applicant was not entitled to a remedy for the misappropriation of his character and idea.

Thus we have a possible conflict between the finding of the board, implicit in its default judgment of 1964, that appellee is the first user of the mark as a service mark and the admission of appellee that the federal district court, affirmed on this point by the court of appeals in 1967, determined that appellant was a prior user of the idea and character which appellee misappropriated. In such a situation, there can be no doubt that the board would be bound by the determination of the federal courts. Societe E. Blanchard et Fils v. Blanchard Importing & Distributing Co., Inc., 150 USPQ 221 (TTAB 1966), aff’d 402 F.2d 797, 56 CCPA 716 (1968); Whopper-Burger, Inc. v. Burger King Corp., 171 USPQ 805 (TTAB 1971). Therefore, we hold that the board was in error in allowing appellee’s motion for summary judgment.

This holding requires us to also hold that appellant is not estopped from seeking to register its mark by reason of the default judgment involving the same mark and essentially identical services. The general rule is that where the prior judgment has legal effect and its application to the parties in the case at bar does not involve any genuine issue of material fact, summary judgment may be rendered for the claimant, or the defendant, as the prior judgment may warrant. 6 Moore’s Federal Practice U 56.17 [52], p. 2664 (1965). However, the intervening decisions of the district court and the coui’t of appeals discussed above assuredly involve genuine issues of material fact which cannot and should not be ignored. We note that this court has previously indicated that facts which have occurred with the passage of time since a default judgment in a prior opposition can avoid application of the doctrine of estoppel. Old Grantian Co., Ltd. v. William Grant & Sons, Ltd., 361 F.2d 1018, 53 CCPA 1257 (1966).

This brings us to the question of whether the board should have allowed appellant’s cross-motion for summary judgment, which would entail dismissal of appellee’s opposition. The answer depends on the sufficiency of the facts of record, including the opinion of the Court of Appeals for the First Circuit, to support registration of appellant’s mark. As noted above, appellee argues that the court of appeals merely found that appellant was the first user, but not of the mark as a service mark. Our consideration of the facts before us is persuasive that this and other issues pertinent to the requirements for registration necessitate a trial on the merits. We point out, for example, that the court of appeals stated that the law governing misappropriation of character was the intellectual property law of Rhode Island; that the issue of secondary meaning was not submitted to the jury in the trial below; that the instructions to the jury limited its finding to creation of the character “Paladin, Have Gun Will Travel” by appellant here and its copying and use by appellee; that appellant’s cards containing his photograph, the knight chess piece, the slogan, and the name “Paladin” were unquestionably writings within the meaning of the copyright clause of the Constitution; and that the services consisted of no other áction than appearing in public and passing out cards. Accordingly, we hold that the board was correct in denying appellant’s cross-motion for summary judgment.

The decision of the board is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

LANE, J., concurs in the result.

      . Application Serial No. 356,049, filed April 6, 1970, alleging first use and first use in commerce in July, 1947; Opposition No. 52,531, filed December 27, 1971.

      . Application Serial No. 151,733, filed August 23, 1962; Opposition No. 44,299, filed August 17, 1964.

      . Although no appeal was taken from the default judgment entered on November 23, 1964, appellant filed a motion to set aside the judgment on December 23, 1969. This motion was denied by the board on March 18, 1970.

      . CBS, Inc. v. DeCosta, 377 F.2d 315 (1967). In its opinion, the court made no mention of the default judgment entered by the board.

      . The court of appeals stated: “The jury obviously disbelieved at least this much of their [appellee’s witnesses] testimony, and we think it clear that they were amply justified. Thus, the plaintiff has had the satisfaction of proving the defendants pirates. But we are drawn to conclude that proof alone is not enough to entitle him to a share of the plunder. Our Paladin is not the first creator to see the fruits of his creation harvested by another, without effective remedy . . . .” And it added: “. . . it is by no means clear that such state [Rhode Island] law of intellectual property as we have found supports relief - on these facts.”

      . Last Chance Mining Co. v. Tyler Mining Co., 157 U.S. 683, 691, 15 S.Ct. 733, 39 L.Ed. 859 (1895).


author: BALDWIN, Judge.

text:
    DANSKIN, INC., Appellant, v. DAN RIVER, INC., Appellee.
    Patent Appeal No. 9206.
    United States Court of Customs and Patent Appeals.
    July 3, 1974.
    Andrew R. Klein, Philadelphia, Pa. (Snynnestvedt & Lechner, Philadelphia, Pa.), attorney of record for appellant; William H. Elliott, Jr., Philadelphia, Pa., of counsel.
    Eugene Sabol, Washington, D. C. (Fisher, Christen & Sabol, Washington, D. C.), attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.
   BALDWIN, Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board (abstracted at 176 USPQ 224 (1972)), adhered to on reconsideration, granting applicant-appellee’s motion for summary judgment, thereby dismissing the opposition of appellant to the registration by appellee of DANSHEER as a trademark for “men’s, women’s and children’s hose and hosiery and pantyhose.” Op-poser-appellant relied upon registrations of its trademark DANSKIN for knitted articles of clothing, particularly leotards, tights, hosiery, pantyhose, and similar products.

Appellee moved for summary judgment on the ground that appellant was es-topped from opposing appellee’s application by reason of a settlement agreement entered into by the parties in a civil action before the U.S. District Court for the Southern District of New York. The civil action was initiated by appellant in response to two oppositions filed by appellee to the registration of two of appellant’s trademarks. As a result of the settlement agreement, the civil action and one of the oppositions were dismissed and the appellant agreed to abandon or assign to appellee the mark involved in the other opposition.

The pertinent portions of the settlement agreement state:

AGREEMENT made this 13th day of February, 1964 by and between Dan River Mills, Incorporated and Danskin, Inc.
WITNESSETH:
. X X- X X X X
WHEREAS, Danskin and Dan River desire to amicably settle said Civil Action and opposition proceedings and to avoid future conflicts or likelihood of confusion respecting the use and registration of trademarks sounding in Dan-,
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto have agreed and do hereby agree.
X X X X X X
3. Danskin agrees to limit its use of the trademark DANSKIN simplieiter to knit hosiery, foot socks, tights, leotards, girdles, form-fitting trunks, panties, leotard type swim suits, sweaters and, except of check or plaid patterns, any other knitted fabric garments.
Danskin agrees not to use the trademark DANSKIN on any colored yarn, woven fabric garments or solid colors, non-stretch, woven fabric garments
XXX X X X
9. Danskin will not oppose or petition to cancel directly or indirectly any registration by Dan River for a “Dan” mark.
X X X X X- X
11. Dan River agrees not to use DANSKIN on any of its products or DANSHEEN or DANSOFT on any products listed in the first sentence of paragraph 3.
X- X X X X X
13. This agreement shall be binding upon and inure to the benefit of both parties, their assigns and successors .... (Emphasis added).

The board granted appellee’s motion for summary judgment and dismissed the opposition stating:

Paragraph 9 unequivocally asserts that “Danskin will not oppose or petition to cancel directly or indirectly any registration by Dan River for a ‘DAN’ mark.” Furthermore, while there is some prohibition expressed against applicant’s use of the marks “DANSKIN”, “DANSHEEN” and “DANSOFT”, there is no restriction against its using the mark here involved, namely, “DANSHEER”. On the basis of the above, there can be no doubt but that opposer is expressly barred from challenging applicant’s right to register “DANSHEER”.

OPINION

In this appeal we are governed by rule 56 of the Federal Rules of Civil Procedure (see Rule 2.116(a), Trademark Rules of Practice), which provides, in pertinent part, as follows:

Rule 56. Summary Judgment.
•X' * * -X- *x- *
(c) [Summary judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is .no geniune issue as to any material fact and that the moving party is entitled to a judgment as a matter of law ....

That summary judgment may be appropriate in trademark matters is beyond dispute. Blanchard Imp. & Dist. Co. v. Societe E. Blanchard et Fils, 402 F.2d 797, 56 CCPA 716 (1968); Old Grantian Co., Ltd. v. William Grant & Sons, Ltd., 361 F.2d 1018, 53 CCPA 1257 (1966).

Appellant alleges that the language of paragraph 9 in the 1964 settlement agreement is susceptible of at least two wholly different constructions. The first construction is that adopted by the Trademark Trial and Appeal Board- — ■ paragraph 9 means just what it clearly states. The second construction urged by appellant, is that when paragraph 9 is construed in context with the entire agreement, a DAN mark can mean only a mark, whether registered or not yet registered, which was in existence at the time the settlement agreement was negotiated and which was used by appellee as a mark for textile fabrics “in the piece”. Appellant contends paragraph 9 cannot be construed to preclude appellant from opposing a DAN mark applied to knitted garments of the type manufactured by appellant. Appellant further alleges that the 1964 agreement must also be limited with respect to the time of its operation. Accordingly, appellant urges that summary judgment was improperly granted because the meaning of paragraph 9 is ambiguous and that genuine issues of material fact remain which appellant should have the opportunity to explain by testimonial'evidence.

We cannot agree with appellant’s allegations. We find no ambiguity of language in either paragraph 9 or the entire agreement such as would necessitate resort to matters outside the four corners of the agreement for an explanation of the terms of the agreement. There is no language in paragraph 9 that even suggests the meaning which appellant would ascribe to it. As to any limitation upon the duration of the agreement, paragraph 13 states that it “shall be binding upon and inure to the benefit of both parties, their assigns and successors,” and the agreement states that it was entered into “to avoid future conflicts . . . respecting the use and registration of trademarks sounding in Dan.” (Emphasis added). The only reasonable interpretation of paragraph 9 is that adopted by the Trademark Trial and Appeal Board— paragraph 9 means what it clearly expresses. Accordingly, we do not find any genuine issues of material fact underlying the adjudication below. 6 J. Moore, Federal Practice 56.27 [1] at 2973 (2d ed. 1974).

Appellant further submits that the doctrine of Lear v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), wherein agreements by patent licensees not to challenge the validity of licensed patents were condemned as being against public policy, should be applicable to, and thus preclude enforcement of, the instant agreement.

However, we find the dissimilarities between the patent license agreement of Lear and the instant trademark settlement agreement, and the basic differences between the acquisition of trademark rights vis-a-vis patent rights to militate against extending the applicability of the principles of Lear to the instant trademark settlement agreement. See Beer Nuts, Inc. v. King Nut Co., 477 F.2d 326 (6th Cir. 1973).

Since DANSHEER is not one of the marks appellee agreed not to use (paragraph 11 of the agreement) and appellee is not precluded from enforcing the settlement agreement, appellee is entitled to a judgment as a matter of law.

For the foregoing reasons, the judgment of the Trademark Trial and Appeal Board is affirmed.

Affirmed.

      . Serial No. 379,496, filed December 24, 1970.

      . Registration Nos. 584,683, issued January 12, 1954; 623,525, issued March 20, 1956; 772,356, issued June 30, 1964; 859,730, issued November 5, 1968.

      . No. 63-CIV-3318 (1964).

      . Opposition Nos. 41,006 and 41,657.

      . If appellant desires to reform or renegótiate the 1964 agreement in accordance with its alleged interpretation, this is not the appropriate forum for doing so.