Opinion of the Court the payment of the agreed amount, $50,000, and acceptance of same by the Government, plaintiff's permit was at once issued, and it was agreed that no criminal prosecution would be instituted; it was a closed transaction. Plaintiff received the full benefits resulting from the compromise, which it has ever since enjoyed, and now it is seeking to recover said sum from the Government on the sole ground that in the correspondence and negotiations concerning the charges against plaintiff, and the compromise of same, both plaintiff and the Government inadvertently made references to a statute, and to certain departmental regulations, which at the time of the commission of the offenses under discussion had been repealed, although superseded by another statute and other regulations in force and effect at the time the offenses were committed, containing the same provisions, and providing precisely the same punishment as the prior act. The only question at issue between plaintiff and the Government at the time of the negotiations for a compromise was the amount which plaintiff should be required to pay in settlement of admitted violations of law. Neither party was concerned in the least with the incidental references occurring in the correspondence. Such references were in no real sense material. The facts were fully known and the charges were undenied. The payment was voluntarily made pursuant to an agreement authorized by section 3229 of the Revised Statutes providing for the compromise of any civil or criminal case arising under the internal-revenue laws, which statute was specifically invoked by plaintiff itself in urging upon the Commissioner of Internal Revenue his authority to accept a payment in compromise. It is the opinion of the court that plaintiff is not entitled to recover back the money paid, and it is so ordered. GRAHAM, Judge; BOOTH, Judge; and CAMPBELL, Chief Justice, concur. 358-28-C C-VOL. 65— 2 Opinion of the Court FRED C. BLENKNER v. THE UNITED STATES [No. F-180. Decided February 20, 1928] On Demurrer to Amended Petition Jurisdiction; petition in nature of bill of discovery.—Where plaintiff alleges that he has " no information or knowledge upon which to base an allegation" as to Government orders or contracts for the manufacture of orduance involving the use of his patents, the petition in effect seeks a right of discovery, which the Court of Claims is without power to grant. Same; Dent Act; suit to recover excess over agreed royalties.—A suit to recover royalties in excess of those agreed upon in a license contract permitting the Government to manufacture, use, or sell a patented article can not be maintained in the Court of Claims under the Dent Act. The Reporter's statement of the case: Mr. H. C. Workman, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the demurrer. Mr. Louis B. Montfort, opposed. The averments of the amended petition are reviewed in the opinion. BOOTH, Judge, delivered the opinion of the court: Defendant demurs to plaintiff's petition. Heretofore a rule had issued from the court requiring plaintiff to make the petition more definite and certain. Therefore the petition now under review is plaintiff's amended one. Defendant still insists upon its demurrer. The material allegations of the petition disclose the plaintiff as copatentee with one John Y. Bassell of devices known as gun sights, adaptable for use on any caliber or model of cannon, machine gun, or firearm. Two patents for the device were issued to the patentres, one No. 870337, dated November 5, 1907, the other No. 919525, dated April 27, 1909. On January 16, 1911, the patentees entered into a written contract with the War Department, licensing the latter to manufacture, cause to be manufactured, use, or sell the patents for and during the Opinion of the Court term of the patent rights. The consideration for this contract was the payment of $5,000 in cash and royalties at the rate of 15 cents for each gun sight coming within the contract. The $5,000 was duly paid. On September 5, 1917, the patents having been duly assigned by Bassell to the plaintiff on February 14, 1917, the plaintiff in his own right filed a claim with the War Department for royalties under the contract, asserting an infringement of the patents by certain manufacturers. The War Department allowed the claim to the extent of 85,169 gun sights. The auditor for the department disallowed the settlement, but the Comptroller General, on February 8, 1922, overruled the auditor, and the plaintiff finally received and accepted $12,959.95 in payment thereof. On January 11, 1923, the year following the disposition of the above claim, the plaintiff alleged that he for the first time became aware of a letter, dated April 12, 1917, written by the Chief of Ordnance, and addressed to the Colts Patent Fire Arms Manufacturing Company. Paragraph 4 of the letter is relied upon to sustain this claim, and we quote it in full: 4. As previously decided, the rear sight must be of the type as now shown on the Benet-Mercier machine rifle, differing in details as given on the prints which have already been supplied you. The rear cover was redesigned to eliminate the top rib in accordance with your suggestion, and prints have been forwarded to the commanding officer Springfield Armory; it is presumed that these have since been received at your establishment." Plaintiff's suit is predicated upon the above paragraph of the letter, and the allegation is made that the rear sights on the Benet-Mercier machine rifle referred to in the letter infringe plaintiff's patents, and that he has not been compensated for their use. Aside from this specific charge is a general and decidedly indefinite allegation that between June 30, 1911, and the filing of the petition the plaintiff is advised and "verily believes" that his patents have been infringed by numerous other manufacturers of firearms, which he names, in manufacturing ordnance under contracts for the Government. Plaintiff sought a reopening of his claim before the Comptroller General and was refused. He pro Opinion of the Court ceeded again before the War Department for additional compensation without avail. He finally asked the War Department to assemble the pertinent data relative to his contention, including the letter of April 12, 1917, and submit the same to the Comptroller General for decision. On December 18, 1925, the Comptroller General decided adversely to plaintiff's contention, and hence this suit. The petition concludes with a prayer for judgment based upon an alleged failure to pay for 114,641 gun sights, at the rate of 70 cents per sight, less the sum of $12,595.95, heretofore paid, i. e., $67,652.75. The contention for increased royalties over the amount fixed in the license contract is claimed under the act of March 2, 1919, 40 Stat. 1272–1273, commonly known as the Dent Act. It is unnecessary to discuss this argument. Obviously the case can by no possibility become a Dent Act case. United States Bedding Co. v. United States, 55 C. Cls. 459. If we correctly apprehend plaintiff's allegations, he now seeks recovery, irrespective of the license contract, upon the theory that he is entitled to just compensation for the gun sights manufactured by or for the Government until the expiration of his patent rights. Clearly the contention is untenable; at any rate the plaintiff has filed no brief to sustain it and contented himself with a mere statement of facts in oral argument. Whatever claim the plaintiff may have grows out of the license agreement; and aside from the various arguments advanced by the defendant to sustain the demurrer it is apparent from the face of the petition that the court is without adequate information to allow the case to go to proof. Plaintiff's allegations abound in conjecture and inference, no positive statement of fact material to the issue discloses a liability or sets forth a cause of action. One paragraph of a letter passing between an official of a department and a Government contractor with reference to the manufacture of rifles is wholly insufficient to sustain the manufacture of the rifles mentioned, and in nowise discloses the detail of construction or what was or what was not used. The court would not be warranted in assuming the existence of facts which the plaintiff himself is unable to state with positiveness or certainty. We are not advised as to plain Reporter's Statement of the Case tiff's patent beyond the general term "gun sights." No letters patent are attached to the petition and nothing appears of record except a vague and indefinite allegation that possibly upon proof the allegations may be sustained. Plaintiff admits and alleges that he has "no information or knowledge upon which to base an allegation" as to Government orders or contracts for the manufacture of ordnance involving the use of his patents. What, as a matter of fact, the petition seeks is the right of discovery. This we have no power to grant. While this is not a patent case in the usual acceptation of the term, it involves the issue of infringement, and would unquestionably require a volume of proof to sustain or discredit it in the absence of more precise statements of fact and absolute knowledge of the existence of things pertinent to the issue. We believe the demurrer should be sustained and the petition dismissed. It is so ordered. Moss, Judge; GRAHAM, Judge; and CAMPBELL, Chief Justice, concur. FRANK H. STEWART ELECTRIC CO. v. THE UNITED STATES [No. F-299. Decided February 20, 1928] On the Proofs Income and excess-profits taxes; good will as invested capital; payment bona fide therefor specifically as such.”—On a finding by the court that plaintiff, upon its organization, issued no stock for good will as such, which it seeks to have included in invested capital for the purpose of determining its income and excess-profits taxes for the years 1917-1920, petition for a refund of taxes computed on such a basis is dismissed. The Reporter's statement of the case: Mr. K. N. Parkinson for the plaintiff. Mr. George C. Ober, jr., was on the brief. Mr. Dwight E. Rorer, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. |