572 Opinion of the Court plumbing contractor should furnish the exact location for the pipe sleeves. Under this language of the contracts, we think it is clear that the fastening of the sleeves furnished by the plumbing contractor at the location designated by him on plaintiff's forms for concrete work was a part of and included in the phrase "shall be built in by the construction contractor as directed and as the work progresses." "We do not think that a distinction should be made between setting or fastening the sleeves in the forms and the building in of the sleeves. The greater weight of evidence of record shows that contract provisions, such as we have here, are interpreted by the trade to require the general contractor to fasten the inserts and sleeves to its forms. For these reasons plaintiff is not entitled to recover on this item of its claim. The last item of the claim is for $2,300 (finding 9) which plaintiff seeks to recover from the defendant solely because plaintiff's painting subcontractor refused to agree to a reduction in its contract of more than $3,200. Prior to the time plaintiff took this matter up with its subcontractor, plaintiff made a written proposal to the defendant that certain painting be eliminated and agreed to accept a reduction on that account of $5,500 in its total contract price. Upon consideration, this proposal was accepted in writing by the defendant and a change order was accordingly issued. The evidence does not establish that this reduction in plaintiff's contract price was excessive for the painting work called for by its contract and eliminated therefrom under the agreement between the parties. The mere fact that plaintiff's subcontractor later refused to accept a like reduction in his contract with plaintiff does not render the defendant liable for the difference. The record shows that there were other circumstances, not connected with the value to the defendant of the painting eliminated from plaintiff's contract, which entered into the refusal of plaintiff's subcontractor to accept the reduction in his contract of the full amount of $5,500, which plaintiff and defendant had agreed upon as the amount properly deductible under the prime contract. Syllabus 93 C. Cls. Plaintiff is not entitled to recover on any of the items of its claim, and the petition is therefore dismissed. It is so ordered. GREEN, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, took no part in the decision of this case. FRANK O. LOWDEN, JAMES E. GORMAN, AND JOSEPH B. FLEMING, TRUSTEES OF THE ESTATE OF CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY, DEBTOR, v. THE UNITED STATES [No. 43074. Decided May 5, 1941] Royalties on leases of Indian coal lands sold under the Act of Febru ary 8, 1918; effective date of title.-Where by an act approved February 8, 1918, Congress authorized the Secretary of the Interior to sell at public auction the coal deposits, leased and unleased, in the segregated mineral area of the Choctaw and Chickasaw Nations and to make all necessary regulations for the sale; and where under the provisions of said act the plaintiff (railroad) was the successful bidder on certain tracts at the sale held on December 11, 1918, which bids were not approved by the Secretary until August 29, 1919, it is held that the sale of said tracts was not effective until the date of approval. Same; continued possession by lessee.—Where the plaintiff (railroad) was the lessee of several developed and undeveloped tracts of coal deposits in the segregated mineral area of the Choctaw and Chickasaw Nations, each such tract covered by a separate lease; and where at the public sale of said tracts plaintiff was the successful bidder on all of the tracts on which plaintiff held leases; and where a successful bidder at such sale was not entitled to possession until his bid had been approved by the Secretary of the Interior; it is held that the continued possession of said tracts by the railroad until approval of said bids was as lessee, under the terms of the lease and subject to the burdens of the lease, one of which was the payment of royalty. Same; credit for advance royalties on undeveloped coal lands.—Where the act providing for the sale of said coal lands, after allowing the lessee credit of one-half of the advance royalty on any undeveloped lease owned by him, to be applied to the purchase 584 Reporter's Statement of the Case price of said tract if bought by said lessee, provided “that any residue of advance royalties heretofore paid by any lessee shall be credited to such lessee on account of any other lease which he may own and operate"; it is held that this provision could by its terms apply only where the lessee of the undeveloped lands continued to operate as lessee on some other lands not purchased by said lessee, and said advance royalties on such undeveloped lands could not be applied to the production royalties which said railroad as purchaser was required to pay as a security for the ultimate payment of the purchase price, to be credited against such purchase price. The Reporter's statement of the case: Mr. Robert E. Lee for the plaintiff. Mr. Thomas P. Littlepage was on the briefs. Mr. Raymond T. Nagle, with whom was Mr. Assistant Attorney General Norman M. Littell, for the defendant. The court made special findings of fact as follows: 1. The Choctaw, Oklahoma & Gulf Railroad Company (hereinafter sometimes referred to as the "Railroad") is a corporation organized under the Act of Congress approved August 24, 1894, and has its principal place of business in Chicago, Illinois. June 7, 1933, plaintiffs were duly appointed trustees of the Railroad by the District Court of the United States for the Northern District of Illinois, in accordance with section 77, chapter VIII of the Bankruptcy Act, and are now the duly qualified and acting trustees thereof. 2. By written agreements dated February 21, 1899, the mining trustees of the Choctaw and Chickasaw Indian Nations leased to the Railroad for a period of thirty years, for the purpose of prospecting for and mining coal, 17 developed and 4 undeveloped tracts of coal deposits in the segregated mineral area of the Indian nations in Oklahoma. These leases were entered into in pursuance of the provisions of the Act of Congress approved June 28, 1898 (30 Stat. 495), and the rules and regulations prescribed by the Secretary of the Interior on October 7, 1898, relative thereto. These leases provided that the Railroad should pay to the United States Indian Agent for the Union Agency, Indian Reporter's Statement of the Case 93 C. Cls. Territory, as royalty on the production of all coal mines developed and operated thereon, the sum of 10 cents per ton for each ton of coal produced. These leases further contained the following provision: And the party of the second part [the Railroad] further agrees and binds itself, its successors or assigns to pay or cause to be paid to the United States Indian Agent for the Union Agency, Indian Territory, as advanced royalty on each and every mine or claim within the tract of land covered by this lease the sums of money as follows, to wit: One hundred dollars per annum, in advance, for the first and second years; two hundred dollars per annum in advance, for the third and fourth years; and five hundred dollars per annum, in advance, for the fifth and each succeeding year thereafter, of the term for which this lease is to run, it being understood and agreed that said sums of money to be paid as aforesaid shall be a credit on royalty should the party of the second part [the Railroad] develop and operate a mine or mines on the lands leased by this indenture, and the production of such mine or mines exceed such sums paid as advanced royalty as above set forth, and further, that should the party of the second part [the Railroad] neglect or refuse to pay such advanced annual royalty for the period of sixty days after the same becomes due and payable under this lease, then this lease shall be null and void, and all royalties paid in advance shall become the money and property of the Choctaw and Chickasaw tribes of Indians, subject to the regulations of the Secretary of the Interior aforesaid. 3. During the period commencing March 1, 1899, and end ́ing December 10, 1918, the Railroad, pursuant to the terms of the leases, paid a total advance royalty of $125,924.64 on the developed tracts of coal deposits. Of that sum $105,845.68 had been credited against the royalties for the production of coal from developed tracts, leaving a balance of $20,078.96 advance royalties unapplied and standing to the credit of the Railroad on December 11, 1918. During the period commencing March 1, 1899, and ending December 10, 1918, the Railroad, pursuant to the terms of the lease, paid a total advance royalty of $34,400 on the undeveloped tracts of coal deposits, and the entire amount thereof stood to the credit of the railroad on December 11, 1918. 584 Reporter's Statement of the Case 4. By an act approved February 8, 1918 (40 Stat. 433), Congress authorized the Secretary of the Interior to sell the coal and asphalt deposits, leased and unleased, in the segregated mineral areas of the Choctaw and Chickasaw Nations in Oklahoma in the manner therein set forth. The pertinent sections of that act read as follows: SEC. 1 Before offering such coal and asphalt deposits for sale the Secretary of the Interior, under such rules and regulations as he may prescribe, shall cause the same to be appraised. Such appraisement, both as to leased and unleased lands, shall be described in tracts to conform to the descriptions of the legal subdivisions heretofore designated by the Secretary of the Interior, and shall be completed within six months after the passage of this Act, SEC. 2. That the sale of such deposits shall be thoroughly advertised, and shall not later than six months from the final appraisement be offered for sale to the highest bidder at public auction in tracts to conform with such appraisement at not less than the appraised value so fixed, except that isolated tracts of less than nine hundred and sixty acres may be sold separately under like provisions: Provided, That twenty per centum of the purchase price shall be paid in cash, and the remainder shall be paid in four equal annual payments from the date of the sale, and all deferred payments on all deposits sold under the provisions of this Act shall bear interest at the rate of five per centum per annum, and shall mature and become due before the expiration of four years after the date of such sale. * * SEC. 4. That such deposits of coal or asphalt on the leased lands shall be sold subject to all rights of the lessee and that any person acquiring said deposits of coal or asphalt shall take the same subject to said rights and acquire the same under the express understanding and agreement that the Department of the Interior will cancel and withdraw all rules and regulations and relinquish all authority heretofore exercised over the operation of said mines by reason of the Indian ownership of said property and that said properties thereafter shall be operated under and in conformity with such laws as may be applicable thereto, and that advance royalty paid by any lessee and standing to the credit of said fessee shall be credited by said purchaser to the extent of the amount thereof, and that no royalties shall be paid 323387-41-vol. 93—39 |