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118 C. Cls.

XXI. The release which the Creek Nation was required by

the terms of the Indian Appropriation Act of 1903 to
sign in order to get the $600,000 appropriated was
not binding upon the Creek Nation nor upon the
appellants. The payment of a lesser sum in pur-
ported discharge of a larger liquidated sum which is
clearly owed does not discharge the unpaid portion
of the debt. Id.

Accord and Satisfaction Cu 23.

United States Om 116.

XXII. Under the decisions in United States v. New York Rayon

Co., 329 U. S. 654, and Albrecht v. United States, 329
U. S. 599, it is held that appellants are not entitled to
interest on the unpaid $600,000, which is claimed in
accordance with the "fair and honorable” dealings
clause of Section 2 of the Indian Claims Commission
Act. Id.

United States Om 110.


See Indian Claims XVII, XVIII, XIX, XX, XXI, XXII.

See Patents I, II, III, IV, V.

1. Under Section 3772 of the Internal Revenue Code (26

U. S. C. 3772) the failure to file with the Collector of
Internal Revenue a claim for refund of taxes or
penalty assessments paid under protest bars any
right of recovery in the United States Court of
Claims. Ertle, etc.,

Internal Revenue en 2024,
II. The filing with the Collector of Internal Revenue of

claims for abatement of tax paid under protest,
which claims for abatement were denied prior to the
payment of the penalty, cannot be construed as being
a compliance with the statute which requires the
filing of a claim for refund within a stated period

after payment. Id.
Internal Revenue 2026.

III. The Court of Claims has no jurisdiction under the

Trading With the Enemy Act (40 Stat. 411, as
amended, 60 Stat. 925), under the provisions of
which exclusive jurisdiction is conferred on the

118 C. Cls.


District Court of the United States for the District

of Columbia Braunschweiger, 289.
Courts fm 449 (1).

IV. Under 28 U. S. C. 2501, a claim of which the Court of

Claims has jurisdiction is barred unless filed within

6 years after such claim first accrues. Id.
Courts. Com 461.

See also Eminent Domain XXIX; Suit for Salary XV.

I. Where plaintiff's petition alleges that on October 8,

1942, during World War II, the United States,
through the War Production Board, issued an order
classifying plaintiff's gold-mining property as a
nonessential mine” and requiring that the mine be
closed, and it was closed on January 18, 1943; and
where the order was revoked on June 30, 1945; it is
held that the order closing plaintiff's mine did not
result in the taking of plaintiff's property for public
use, for which the Government would be liable under
the Fifth amendment, and plaintiff's petition does
not set forth a cause of action. Defendant's de-
murrer is sustained. Oro Fino Consolidated Mines,

Inc., 18.
Eminent Domain cm 2 (7).
II. The United States had no intention of keeping plain-

tiff's mine closed permanently. The order closing
nonessential mines was a wartime measure, designed
and intended to divert gold miners into the more

essential field of copper mining. Id.
War and National Defense C 45.

III. The use and enjoyment of property may, under proper

circumstances such as war necessities, be regulated
or restricted or even temporarily suspended in order
to protect the whole public, without making the

Government liable for just compensation. Id.
Eminent Domain www 2 (1).

IV. In the instant case the Government did not take over

or use plaintiff's property; it did not take any gold.
Title and possession remained in plaintiff, as before.
The Government merely forbade, for the time being,
the mining of gold. If this had the effect of depriv-
ing plaintiff temporarily of the only interest it had in

118 C. Cls.


the land, and if because plaintiff's interest was not in
fee but was for a definite duration, it made that
interest less valuable, these adverse effects were inci-
dents not so much of the Government order as of the
kind of ownership which plaintiff had. The Govern-

ment is not liable for such effects. Id.

Eminent Domain m 2 (7).
See also Eminent Domain I, II, III, IV, V, VI, VII, VIII, IX, X,



See Overtime Pay XII; Suit for Salary II, III, VII, VIII.

I. Where in April 1943, the plaintiff entered into a license

ing agreement with the Government of the United
States under which the plaintiff licensed the Govern-
ment to procure and transfer to the Union of Socialist
Soviet Republics plaintiff's information and facilities
relating to a petroleum-treatment process on which
the plaintiff held patents and possessed the necessary
"know-how”; and where the Government agreed to
pay, and did pay, to plaintiff a lump-sum royalty of
$25,982.50 for the privilege of the use and operation
of the plant erected in Russia in 1946 for a period of
18 months; and where, before the expiration of the
18-month period, the United States Government,
under the terms of its agreement, notified the plaintiff
that it elected not to make use of its option to extend
the license further and notified the Soviet Govern-
ment that its right to use the processes in question
under the Lend-Leaşe Act would expire on March 5,
1948; it is held that the continued use of plaintiff's
patents and processes, without payment, by the
Soviet Government after the expiration of the licens-
ing agreement does not constitute a breach of con-
tract by the United States and plaintiff is not entitled

to recover. Stratford Development Corp., 44.
United States 73 (22).
II. Section 7 of the Lend-Lease Act, under which the

licensing agreement between plaintiff and defendant
was made, provided that in all such contracts or
agreements the agents of the defendant should "fully
protect the rights of all citizens of the United States

118 C. Cls.


who have patent rights in and to” any articles or
information which were to be disposed of under the
Act. In the instant case the taking by the Govern-
ment of the promise of the Soviet Government, under
Article IV of the Mutual Aid Agreement, which
article was quoted and incorporated in plaintiff's
license agreement with the defendant, was compliance
by defendant with Section 7 of the Lend-Lease Act.

United States Om 97.

III. By Section 7 of the Lend-Lease Act Congress did not

require the Government to agree to indemnify the
plaintiff against the Soviet Union's default. Con.
gress required that the Government take from the
Soviet Union its promise to pay the plaintiff royal-
ties if the Soviet Union continued to use plaintiff's
patents after the expiration of Lend-Lease, which
was the only practical thing for the Government to

do in the circumstances. Id.
United States C 97.

IV. Section 7 of the Lend-Lease Act was applicable to all

of the countries eligible for assistance under its
provisions. Congress would naturally have expected
that the allies of the United States would, after the
war, do what they agreed to do and hence would
have regarded the taking of their promises to pay

as a sufficient guaranty of performance. Id.
United States Cams 58.

V. The plaintiff, when it licensed the United States

Government to ship its patented devices and disclose
its "know-how” to Russia, was as fully aware as
was the Government that there were no means,
other than diplomatic, to induce or compel the
Soviet Union to do what it agreed to do. On the
evidence the Court concludes that the United States
Government has done by diplomatic means all that
could usefully be done, though without result. It
is held that the United States has not breached its
contract with the plaintiff and plaintiff is not
entitled to recover.

United States Con 73 (22).


See Patents I, II, III, IV, V.

118 C. Cls.


I. Where plaintiff's petition states that his action is

brought pursuant to the Lucas Act (60 Stat. 902)
on account of losses incurred by him as a subcon-
tractor on two contracts and a prime contractor on a
third contract for work at various airports, it is
held that the documents filed by the plaintiff, or on
his behalf, with the Civil Aeronautics Authority
before August 14, 1945, did not satisfy the require-
ments of Section 3 of the Lucas Act as construed
by the Supreme Court in the case of United States v.
Fogarty, 340 U. S. 8. Demurrer sustained and

petition dismissed. Pennington, 610.

United States G 7475.
II. Two of the documents referred to in plaintiff's petition

are not requests for relief, either under the First
War Powers Act or otherwise, but were forms filled
out by the plaintiff at the request of the Government

for statistical purposes. Id.

United States Cm 7442.
III. The claim filed by plaintiff's prime contractor, in

plaintiff's behalf, in connection with another sub-
contract, constituted an assertion of right, a claim
for breach of contract, not a request for relief as a
matter of grace within the contemplation of the

Lucas Act. Id.

United States om 7472.

I. In a suit under the Missing Persons Act of March 7,

1942 (50 U. S. C. App. 1001-1015), where it is shown
that plaintiff, an officer in the Philippine Scouts, a
part of the Army of the United States, was taken
prisoner by the Japanese Army on April 9, 1942, and
held as a prisoner of war until June 28, 1942, when
he was released on parole; it is held that the final
determination of the Commanding General that the
plaintiff was not in a casualty status during the
period in question, October 1, 1942, to January 1,
1945, was conclusive, and plaintiff is not entitled

to recover. Moreno, 30.
Army and Navy C 13 (6).
II. The departmental determination that the plaintiff

was not in a casualty status during the period in

question was not arbitrary or capricious. Id.
Army and Navy Cow 13 (6).

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