Concurring Opinion by Judge Whitaker 93 C. Cls. tions, under the existing facts, conditions, and circumstances resulted in a dispute between the parties concerning a question arising under the contract. In view of the clear language of art. 15, the decisions of the contracting officer and the head of the department against plaintiff on this question were final and conclusive, unless those decisions were arbitrary or so grossly erroneous upon the facts before them as to imply bad faith. Plumley v. United States, 226 U. S. 545, 547; Merrill-Ruckgaber Co. v. United States, 241 U. S. 387, 393; Ripley v. United States, 223 U. S. 695, 701; United States v. John McShain, Inc., 308 U. S. 520, 521. The facts alleged in the petition are not sufficient to show that the decisions of these officers were arbitrary or grossly erroneous. The demurrer is sustained and the petition is dismissed. It is so ordered. GREEN, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, concurring: I concur in the result, because of the provisions of article 15 of the contract conferring jurisdiction on the defendant's contracting officer to settle all disputes and making his decision "final and conclusive." Although it is surprizing that they should do so, it is nevertheless within the power of parties to agree to leave to one of them the settlement of any disputes under the contract if they choose. This is what the parties did in this case, and they are bound by it. The contracting officer has interpreted the word "overtops" to mean flooding. I think that interpretation wrong, but under the contract this court is without power to substitute its construction for that of the so-called arbiter agreed on by the parties. I think the plaintiff is entitled to recover except for this provision. 281 Opinion of the Court SAMUEL J. KATZBERG, LOUIS HAIG, AND JACOB F. SCHMITT v. THE UNITED STATES [No. 45289. Decided March 3, 1941] On Demurrer Internal Revenue; offer of reward for information leading to conviction. Following the decision in the case of Abraham L. Gordon v. United States, 92 C. Cls. 499, it is held that under the provisions of the offer of reward made by the Commissioner of Internal Revenue, the amount of the award is within the discretion of the Commissioner. Same. Where no definite or ascertainable sum was offered, no contract arose from the offer of reward and the giving of information by the plaintiffs. Mr. David Steckler for the plaintiffs. Mr. Frank D. Chaiken was on the briefs. Mr. E. Leo Backus, with whom was Mr. Assistant Attorney General Francis M. Shea, for defendant. The facts sufficiently appear from the opinion of the court. WHITAKER, Judge, delivered the opinion of the court: This case is before us on demurrer to plaintiffs' petition. The petition alleges the plaintiffs gave certain information. to the Commissioner of Internal Revenue concerning violation of the revenue laws, which led to the detection and punishment of persons guilty of violating the internal revenue laws and the recovery of fines, penalties, forfeitures and taxes; that a claim for reward was filed pursuant to the Commissioner's offer of reward, and that this reward was rejected by the Commissioner; and that in so doing he acted arbitrarily and capriciously. The Commissioner's offer of reward reads in part as follows: * * I do hereby, with the approval of the Secretary of the Treasury, offer for information given by persons other than officers of internal revenue, that shall lead to the detection and punishment of persons guilty of violating the internal revenue laws, * Syllabus 93 C. Cls. such reward as the Commissioner of Internal Revenue may deem suitable, but in no case exceeding 10 percent of the net amount of fines, penalties, forfeitures, and taxes, which by reason of said information shall be recovered by suit or otherwise. This case is ruled by our decision in Abraham L. Gordon v. United States, 92 C. Cls. 499. The plaintiff's say this case should be overruled. They say the offer of reward in both cases implies that the Commissioner will give honest consideration to the claim of reward, and that the petition alleges he did not do this, but acted arbitrarily and capriciously, which the demurrer admits. To this extent we agree. But we cannot agree that the offer also implies, as the plaintiffs say, that the Commissioner shall award such sum as may be reasonable in fact. The offer says he will award such sum as shall seem to him suitable, not such sum as may in fact be suitable, or reasonable. What this sum is we have no way of knowing. No definite or ascertainable sum was offered and, therefore, no contract arose from the offer of reward and the giving of information by the plaintiffs. In these circumstances this case is controlled by the Gordon decision, to which we adhere. Defendant's demurrer must be sustained, and plaintiffs' petition dismissed. It is so ordered. MADDEN, Judge; JONES, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. MYERS ARMS CORPORATION, A CORPORATION, [No. M-231. Decided April 7, 1941] Patent for rotatable gun mount; validity; infringement.—It is held that if the patent in suit, No. 1,608,109, issued November 23, 1926, which "relates to vehicles and particularly to that class thereof that are used in warfare," is read so as to apply to the Scarff gun mount used in aeroplanes purchased by the defendant for the Army, there is no infringement since it was anticipated by prior patents and designs and is therefore invalid. 282 Reporter's Statement of the Case Same. It is held that if patent No. 1,608,109 is not read so as to apply to the Scarff gun mount and is confined to the specific embodiments disclosed in the said patent No. 1,608,109, there was no infringement, since the Scarff mount was an altogether different structure from that disclosed by the patent in suit. Same. The concept of a gun mounted in an aeroplane in the same general manner as the gun in the patent in suit was not new when the application for said patent was made. Same. There is no patentable relation between a flying machine and a cannon carried thereby. The Reporter's statement of the case: Mr. Charles R. Fenwick for the plaintiff. Messrs. William H. Mondell and Hugh H. Obear were on the briefs. Mr. H. L. Godfrey, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Messrs. J. F. Mothershead and Frank H. Harmon were on the brief. The court made special findings of fact as follows: 1. The plaintiff, Myers Arms Corporation, is a corporation organized and existing under and by virtue of the laws of the State of New York, with offices at 331 Madison Avenue, New York, N. Y. 2. Under date of June 12, 1931, George Francis Myers executed an instrument in writing assigning to the Myers Arms Corporation the exclusive right, title, and interest in and to the patent in suit including the right of action and recovery for past infringement. The original instrument, which was not recorded in the United States Patent Office, is plaintiff's exhibit 2, and is by reference made a part of this finding. 3. On August 23, 1909, George Francis Myers filed an application for a patent in the United States Patent Office, Serial #514,165, for improvements in flying machines. One of the objects stated was "to improve the means for supporting and operating a cannon." The original application contains the following disclosure relative to the mounting of a gun or cannon on an aeroplane: For use in warfare the flying machine is provided with a cannon 800 which is preferably arranged above the body or frame in rear of the stabilizer and mounted on the frame by the means which are shown in figures 323387-41-vol. 93--20 Reporter's Statement of the Case 93 C. Cls. 1, 2, 26, 27, and 28 and which are constructed as follows: 80 represents a circular track arranged horizontally on the bottom of the turret or gunner's compartment in the frame or body and surrounding an opening of substantially the same diameter in the bottom of the body. The gunner's compartment or turret is preferably made square in cross section, as shown in figure 27, by extending the sides of the body for this purpose. Within the gunner's compartment and projecting upwardly through an opening in the top of this compartment is a horizontally rotatable carriage 81 which has an unobstructed interior and which preferably comprises a lower circular base or ring 82 provided with wheels 83 running on the track 80 and a pair of standards 84 which project upwardly from opposite sides of the base through the top opening of the gunner's compartment and to the upper ends of which above the main frame or body the cannon is pivoted by means of horizontal trunnions 85. By turning the carriage horizontally in the frame and the cannon vertically on the carriage it is possible for the gunner to aim the cannon in all directions within a hemisphere above the frame or body of the machine and also downwardly through the body into different parts of a conical field, thereby commanding practically the entire space around the flying machine and affording the maximum capacity for attack or defense. The carriage is provided with a seat 86 for the gunner whereby the latter is supported by the carriage and remains in a definite location relative to the cannon as the carriage is rotated. Figures 1 to 5, inclusive, of the patent in suit which comprise all the drawings thereof are similar in character to Figures 12, 26, 27, and 28 of the drawings of the original application, and the structures disclosed in the drawings of the patent in suit are based upon the drawings of the original application. 4. Claims 29 to 34 of the original application refer to the combination of a flying machine and a cannon. Claims 29 and 34, which are typical of this group, are as follows: 29. A flying machine comprising a body having a gunner's compartment provided with an opening to the exterior of the body, a carriage rotatable within said compartment and projecting through said opening, and a cannon mounted on the carriage outside of said body. |