Forest Lumber Co. v. United States in a Fiduciary Capacity , 141 F. Supp. 953 ( 1956 )

LittletoN, Judge,

delivered the opinion of the court:

The plaintiff, Forest Lumber Company, instituted this suit pursuant to the provisions of a special jurisdictional act¹ to recover $44,772.62 as damages allegedly suffered by plaintiff in connection with, a contract to purchase timber on the Klamath Indian Reservation in Oregon. An identical claim was filed in this court by the plaintiff under the court’s general jurisdiction and was decided in plaintiff’s favor in a decision reported in 86 C. Cls. 188 (1938). Judgment for plaintiff in the amount of $44,772.62 was reversed by the Supreme Court in United States v. Algoma Lumber Co., 305 U. S. 415 (1939) on the sole ground that the Court of Claims lacked jurisdiction of the subject matter of the claims because the contracts sued on were made on behalf of Indian Tribes and were not obligations of the United States.

The special jurisdictional act conferring jurisdiction in the present case does so notwithstanding any limitation upon the jurisdiction of the Court of Claims with respect to claims upon any contract implied in law, and authorizes the court to render judgment against either the United States in its fiduciary capacity for the Indians or against the Indians themselves in connection with the timber sale contract construed by the court in the January 12, 1988 decision, supra.

Plaintiff acquired the contract in suit by assignment in 1926. The contract had been executed on October 30, 1920, by the superintendent of the Klamath Indian School on behalf of the Klamath Tribe of Indians, and the Williamson River Logging Company, one of plaintiff’s predecessors in interest in the contract. It provided for the sale by the superintendent to the lumber company of all the merchantable timber which should be marked or designated by the seller over a specified area, part of which was unallotted Indian tribal property.

The contract also provided for separate contracts between the purchaser and those Indians holding trust patented allotments within the defined area. The contract provided for the cutting and removal of timber from 1920 to March 31, 1939. The stumpage price to be paid by the purchaser for the first three years of the contract term was to be the bid prices of $5.08 for yellow pine, sugar pine and incense cedar, and $1.85 for other species. The remainder of the contract term was divided into 3-year periods, each period beginning on April 1, in the years 1924,1927,1930,1933 and 1936. It was provided that the stumpage prices for each species for such 3-year periods would be as fixed by the Commissioner of Indian Affairs, in the manner prescribed in the contract. The contract then provided under what circumstances stump-age prices might be increased. It also prescribed a formula for computing such increase and a limitation on the amount by which the stumpage price might be advanced for any 3-year period. The contract conferred upon the Commissioner of Indian Affairs the right to fix stumpage rates to be paid during any 3-year period with two exceptions: (1) in no event might the stumpage rate be less than the rates bid and fixed for the first 3-year periol, and (2) that in the event the Commissioner determined an advance was warranted under the provisions of the contract, such advance could not exceed 50 percent of the difference between the average mill run wholesale net value of lumber of that species for the three years just preceding the date on which the particular 3-year period in question commenced and the wholesale price of lumber for the 3-year period prior to the first 3-year period mentioned. For example, in connection with a possible adjustment in stumpage price for the 3-year period commencing April 1, 1927, if the wholesale value of lumber for the 3 years 1924, 1925 and 1926 had been $25, and the wholesale value of the same species for the three years, 1921,1922 and 1923, had been $24, the difference thus being $1, any increase in stumpage rates justified under another provision of the contract would be limited to 50 cents, i. e., 50 percent of such $1 difference.

The first issue in this case involves a dispute between the parties as to the proper interpretation of the contract provisions relative to adjustments in stumpage prices. The provisions in question are as follows :

For purposes of stumpage price adjustments by the Commissioner of Indian Affairs at the close of the first period [March 31, 1924] of the contract as specified above, it is hereby stipulated by the Superintendent and the purchaser that the average mill run wholesale net value per thousand feet lumber measurement f. o. b. mills in Southern Oregon and Northern California, during the 3 years ending January 1, 1920, have been twenty-two dollars and fifty cents ($22.50) for yellow pine (including the so-called “bull-pine”), sugar pine, and incense cedar, and seventeen dollars ($17.00) for other species.

In determining the stumpage rates to be designated for all timber scaled during the 3-year period beginning April 1, 1924, the average mill run wholesale net values of lumber f. o. b. mills operating in Southern Oregon and Northern California during the 3 years directly preceding January 1,1924, will be compared with the values of $22.50 and $17.00 stipulated in the preceding paragraph [for the years 1917-1920] as basic values, and the cost of logging operations and lumber manufacture during the said 3 years will be compared with the cost of such operations and manufacture during the 3-year period preceding January 1,1920, for the purpose of ascertaining, so far as is practicable, whether there has been generally in the lumber industry in the specified region an increase in the margin of profit on logging and manvw-facturing operations during the 3-year period directly preceding January 1,1924-

An advance in stumpage prices prescribed by the Commissioner for the 3-year period beginning April 1,1924, shall not exceed 50 percent of the difference between the average mill run wholesale net value of lumber of that species f. o. b. mills as stipulated above and that for the same species during the 3 years directly preceding January 1, 1924. In the discretion of the Commissioner a reduction in the stumpage price of any species may subsequently be made to correct any error or to afford the purchaser relief from a market depression that deprives the purchaser of a substantial margin of profit: Provided, That the stumpage prices of no species will ever be reduced below the rate bid for the initial period of the contract.

For the 3-year periods of the contract beginning April 1, 1927, 1930, 1933, and 1936, readjustment of stumpage prices may be made in the same manner as for the period beginning April 1, 1924, except that the prices determined and used for the preceding 3-year period will in each case be considered as the stipulated prices that are to be compared with the average prices obtaining during the succeeding 3-year period. [Italics and matter in brackets added.]

As of April 1, 1924, the beginning of the second 3-year period, the Commissioner of Indian Affairs decided not to increase stumpage rates for the next three years, although the average mill run wholesale net value of lumber, f. o. b. mills, etc., for white and sugar pine had increased to $30.26 for the years 1921, 1922 and 1923, over the stipulated price of $22.50 for 1917,1918 and 1919, and also over the actual price of $23.10 for the same period. (See Finding 7.) The record does not disclose logging and manufacturing costs for the 1921,1922, and 1923 period, but assuming that they were such that there was an increase in the margin of profits on such costs of logging and manufacturing operations in that period over 1917,1918 and 1919, the Commissioner would have been justified, under the contract, in increasing the stumpage price on April 1, 1924, subject only to the 50-percent limitation provided for in the contract above quoted.

For the third 3-year period beginning April 1, 1927, the Commissioner of Indian Affairs decided to increase stumpage prices $1 per thousand feet, such increase not to become effective until April 1,1928.

After vigorous protest by plaintiff that any increase was unjustified under the contract, the Commissioner in March 1928, notified plaintiff that he would impose an increase of only 40 cents per thousand feet, effective April 1, 1928, the beginning of the second year of that 8-year period. The 40-cent increase went into effect on April 1,1928 (the beginning of the second year of the third 3-year period), and remained in effect despite plaintiff’s protests, until March 31, 1930, during which period plaintiff cut 111,931,560 feet of yellow and sugar pine. That quantity of lumber at the 40-cent advance in stumpage rate resulted in the $44,772.62 overpayment sought to be recovered by plaintiff in this suit, as having been imposed contrary to the terms of the contract.

In determining whether or not he could impose any advance in stumpage rates for the 3-year period commencing on April 1,1927, the Commissioner of Indian Affairs was required by the terms of the contract to compare the wholesale lumber prices for the three years just past (1924, 1925, and 1926) with the wholesale lumber prices for the preceding three years (1921, 1922, and 1923). Such a comparison would have revealed that the average wholesale price of lumber for the 1921, 1922, 1923 period was $30.25, whereas the price for the next three years went down to $27.00. In the face of this decrease in lumber prices, the Commissioner was precluded by the terms of the contract from making any advance in stumpage rates for the 1927-1929 period and his imposition of the 40-cent advance in that period was a clear violation of the express terms of the contract provisions.

Defendant concedes that a comparison of the wholesale lumber prices for 1921-1923 with the 1924-1926 prices does reveal a decrease in the wholesale price of lumber, but defendant says that under the terms of the contract the Commissioner was permitted to compare the 1924-1926 wholesale price of $27.00 with the stipulated price for the 3-year period prior to the execution of the contract, 1917-1919, of $22.50, skipping the intervening years 1921-1923, and that since such a comparison would result in an increase in wholesale prices in the later period over the earlier one, the stumpage rate advance in 1928 was justified,

The contract provides that in making stumpage price readjustments for each 3-year period beginning with'the April 1,1927, period, the Commissioner should use the same method used for the period beginning April 1,1924, “except that the prices determined and used for the preceding 3-year period will in each case be considered as the stipulated prices that are to be compared with the average prices obtaining during the succeeding 3-year period.” This means in our opinion that the two 3-year periods used for comparison must run consecutively regardless of the fact that the Commissioner might have made no stumpage rate advance in the earlier period, i. e., on April 1,1924. The fact that no rate advance was made at that time did not justify the Commissioner in using wholesale prices prevailing during a 3-year period beginning nine years prior to April 1, 1927, for the purpose of determining whether or not an advance in stumpage rates was proper for the 3-year period commencing April 1, 1927.

Defendant next argues that it should not be held to strict compliance with the terms of the contract relative to stump-age rate adjustment for the 3-year period commencing on April 1,1927, because, on the occasion of the previous 3-year period, the Commissioner of Indian Affairs had refrained from imposing an advance in stumpage rates although the increased profits enjoyed by the lumber industry in the area for the 3-year period just prior to April 1,1924, would have justified such a rate advance. Defendant urges that by not imposing a stumpage rate advance on April 1,1924, the Commissioner was departing from the terms of the contract for the benefit of the contractor and that therefore it would be only equitable for him to depart from the contract terms on April 1,1927, for the benefit of the Indians and at the expense of the contractor.

As pointed out by Judge Williams in the earlier opinion and decision of the court in this case, the decision of the Commissioner in 1924, to refrain from imposing a stumpage rate advance, was not a departure from the strict terms of the contract which, on the contrary, gave to the Commissioner unlimited discretion not to impose an advance in stumpage rates for any particular 3-year period. Accordingly, no principles of waiver or estoppel in favor of defendant come into existence in connection with this action of the Commissioner. " "*

Finally, defendant urges that plaintiff’s payment of the 40-cent stumpage advance in 1928 and 1929, although under protest, amounted in law to a “voluntary” payment which cannot be recovered. Defendant relies on the principle that payment of money upon an illegal demand with full knowledge of all the facts which render such demand illegal, and without any immediate and urgent necessity therefor, is deemed a voluntary payment despite the filing of a written protest at the time of making the payment. Railroad Co. v. Commissioners, 98 U. S. 541. Defendant insists that the alleged overpayment of the 40-cent stumpage advance was not made under duress or under a threat by the Government that the contract would be canceled. The issue thus presented is, do the facts of record herein establish that the alleged overpayments were voluntary ?

We are of the opinion that under the terms of the contract and under the facts and circumstances shown by the record, the payment by plaintiff of the 40-cent advance in stumpage rates was not voluntary. Under the terms of the contract, payment for stumpage to be cut in the future was paid for in advance by the making by the plaintiff of substantial deposits with defendant. Against that deposit account defendant made charges representing the amount of timber cut at the stumpage rate fixed for the period during which the cutting occurred. In addition, the purchaser’s bid had been accompanied by a deposit in the amount of $40,000, which was retained by the Commissioner to insure faithful performance of the contract. The purchaser also had to post a bond in the penal sum of $50,000. The contract provided that prior to the time when the stumpage value of timber cut under the contract should exceed the $40,000 cash deposit, the purchaser had to make additional cash deposits of not less than $10,000 each to cover further cutting to insure that the stumpage value of the timber cut should not exceed the cash deposit in the hands of the Government. Failure of the purchaser to make the required cash deposits in advance of actual cutting, or failure of the purchaser to cut the timber and remove it as marked or designated by the defendant, would have subjected the purchaser to cancellation of its contract and forfeiture of its bond.

When the stumpage rates were improperly and illegally advanced in 1928 and 1929, the purchaser could not refuse to pay such rates because it was not in a position to do so since it had already on deposit more than sufficient money to .cover timber to be cut at the advanced rate. The most the purchaser could do under those circumstances was to protest the imposition of the rate advance and request that its funds on deposit not be charged with such advance. This the purchaser did, and this was the most it could have done without risking cancellation of the contract. Its protests were denied and its deposits were charged. Such actions did not on plaintiff’s part amount to a voluntary payment of the stumpage rate advances imposed in 1928 and 1929.

The special jurisdictional act provides for the payment of any judgment made by the court as follows:

Sec. 4. Any part of any judgment rendered hereunder which represents sums actually deposited to the credit of said Klamath and Modoc Tribes and Yahooskin Band of Snake Indians for timber cut from tribal lands shall be paid by the Secretary of the Treasury, upon appropriation by the Congress, from any funds in the Treasury of the United States to the credit of said tribe. Any other part of any judgment rendered shall be payable in the same manner as in the case of claims over which the Court of Claims has jurisdiction under section 1491 of title 28 of the United States Code.

Plaintiff is entitled to recover the amount of $44,772.62 and judgment is rendered therefor. In view of the above-quoted provision of the special jurisdictional act, payment of that part of the judgment which shall be paid in the same manner as in the case of claims over which this court has jurisdiction under section 1491 of title 28 of the United States Code, will be suspended pending the making of a stipulation by the parties or a determination by the proper Government officials of the amount so to be paid under Pule 38 (c).

It is so ordered.

Laramore, Judge; MaddeN, Judge; and Junes, Chief Judge, concur. Whitaker, Judge, took no part in the consideration or decision of this case.

FINDINGS OE FACT

By agreement of counsel at the pretrial proceedings before Commissioner William E. Day, on September 27 and 28, 1954, the parties agreed to enter into a stipulation covering-all the facts in the instant case. The parties further agreed that the facts agreed upon were all of those contained in the report of Court of Claims Commissioner I. M. Foster, dated April 24, 1937, covering the subject matter of the case, and that the facts to be stipulated should also include additional facts, if any, which were alleged in the petition and admitted in defendant’s answer.

The above-mentioned report of Commissioner Foster was adopted in all material respects by the court as its special findings of fact in its decision on January 12, 1938, in Forest Lumber Co. v. United States, 86 C. Cls. 188. Accordingly, the special findings of fact of the court in the Forest Lumber Co. case, supra, are incorporated herein by reference, with the following additional findings based on the above-mentioned stipulation of the parties in the instant case:

1. The General Timber Sale Regulations, approved April 10, 1920, and made a part of the contract, are of record as defendant’s Exhibit N, and, by reference, are made a part hereof.¹

2. Said letter is of record as defendant’s Exhibit O, pages 46-48, and, by reference, is made a part hereof.²

3. The following material was in Commissioner Foster’s finding 12, and was omitted by the court in finding 12 of its special findings of fact:

On December 7, 1929, plaintiff, through its attorney, forwarded to the Secretary of the Interior a written appeal from the action of the Commissioner of Indian Affairs, in imposing the price increase of 40 cents per thousand, effective April 1, 1928. On December 17, 1929, Assistant Secretary of the Interior Dixon granted plaintiff a hearing on its appeal. The Commissioner of Indian Affairs was present at the hearing. The contract of October 30, 1920, provided that “the determination of the new rates shall lie wholly within the discretion of the Commissioner of Indian Affairs,” and made no provision for an appeal from the decision of that officer.

In the Klamath District, the income from the industry as a whole, that is, of those corporations operating on the Klam-ath Indian Reservation, was for the period 1923 to 1929 inclusive, as follows:

Tear Net Income

1923_$345,452.89

1924_ 292,574. 55

1925_ 648,519.12

1926_ 501, 019.90

1927_ 37,798.03

1928_ 461, 566.42

1929_ 118, 552.67

This income reflected a return on the investment (net worth) of the following:

Tear Percentage

1923_ 9.7

1924_ 5.4

1925_10.8

1926_ 5. 0

1927_ 0.36

1928_ 3.9

1929_l_ 1. 3

4. The modified contract is of record as defendant’s Exhibit O, pp. 2-6, which by reference is made a part hereof.³

5. The plaintiff, and other timber-producing companies operating within the Klamath Region, were members of the California White and Sugar Pine Manufacturers Association. It was the practice of plaintiff, and other members, to furnish to that association statistics respecting operations, volume production, grades, and prices received for each individual order which was shipped. That association published, annually, statistical statements containing an analysis of lumber prices of pine and other species of timber grown within the area defined in the contract. These statements showed summaries of inventories, orders, stocks, and comparative data on production at member mills in Oregon and California. A synopsis of the grade prices of California white pine, as shown by these statements, was incorporated in the valuation studies conducted by the Indian Service, for the purpose of determining the readjustment of stumpage prices under contracts affecting the Klamath Indian [Reservations in Oregon.

These statistical statements were compiled for the purpose of furnishing contributing members with information respecting the prices of upper grades of lumber. Prices which cover the lower grades, namely box and common, which constitute more than 55 percent of the log, were not reported. Because of the omission of this data, the average mill run wholesale net value of lumber f. o. b. mills, as defined in the contract, cannot be determined from the annual statistical statements published by the California White and Sugar Pine Manufacturers Association. The information contained in these statements was. used only for comparative purposes by the Commissioner of Indian Affairs, in determining the stumpage price adjustments under the contract.

In compiling the regional average figures covering both production costs and sales prices, the valuation engineer followed a method intended to secure directness and mathematical simplicity. He computed the net return from sales, after all adjustments for commissions, freight, etc., had been divided by gross volume sold, to show average price; and the total volume sold divided by total costs of sales, to show average unit costs. The final yearly audits of the various corporate purchasers of timber operating within the Klamath Region, as certified by their respective accountants, were totaled and direct averages obtained. The valuation engineer, representing the Indian Service, was thus enabled to establish for each year the average mill run wholesale net value of lumber at mills in the Klamath Region in Southern Oregon and Northern California, as defined in the contract.

The Klamath Region was noted for its fine quality of pinus ponderosa (a species of Western yellow pine). Because of its fine texture and adaptability for various commercial uses, lumber produced from that species of pine, for many years prior to 1931, entered Eastern markets under the descriptive classification of California white pine, in competition with the celebrated Northern or true white pine. There was sharp competition between rival lumber companies operating within the Klamath Region for stumpage on the Klamath Reservation.

The highly competitive stumpage market that developed within the Klamath Region during the period of this contract was unprecedented and not foreseen by those conversant with the trend of lumber prices. This highly competitive situation was aggravated by the post-war boom, which caused the values of stumpage to advance more rapidly than in any other known comparable area.

In the determination of the production costs of timber the cost of stumpage is one of the most important single factors to be considered.⁴

6. The abnormal conditions due to the World War, and the unprecedentedly high levels attained by the sales prices of lumber within this competitive area in 1920 and for several years thereafter, together with the rapid rise of stump-age values during the period between 1917 and 1929, as reflected by competitive bids for stumpage within the Klamath Region, imposed upon the Secretary of the Interior the mi-usual task of determining what share of the profits should be allocated, under the terms of the contract, between the purchaser and the Klamath Indians. These unprecedented and abnormal conditions made it necessary for the Commissioner, in the exercise of his discretion, not to follow the strict provisions of the contract, but to make only such price readjustments, based upon an equitable interpretation of the contract, as in his judgment would enable the purchaser, on the one hand, to earn a reasonable profit from its operation, and, on the other hand, to safeguard the interest of the Klamath Indians.⁵

7. The average mill run, net wholesale prices of California white and sugar pines, applicable to the Forest Lumber Company contract for the respective 3-year periods here involved, were, as shown by the defendant’s “Exhibit E,” page 82, as follows: For the years 1917, 1918, and 1919, $23.10; for the years 1921, 1922, and 1923, $30.26; and for the years 1924, 1925, and 1926, $27.00.⁶

8. The officials of the Government who drafted the contract and who participated in its administration throughout the period of its performance interpreted this provision of the contract to mean that the Klamath Indians should share in one-half of such increased profits. It was understood by the parties to the contract that the remaining one-half of the profits would absorb any increase in the cost of production under the contract.⁷

9. In determining to put into effect the increase of 40 cents on April 1, 1928, the officials of the Office of Indian Affairs were guided by many factors, and not by any particular factor. Consideration was given to the fact that there had been a large increase in stumpage values on the Klamath Reservation and adjacent areas; that there had been a reduction in manufacturing costs; and that plaintiff and other purchasers pleaded that they could not afford to pay higher prices. The Commissioner sought to be fair with the lumber companies and at the same time protect the interests of the Klamath Indians. During the period under consideration there had been a decrease in the mill run net wholesale prices.⁸

CONCLUSION OF LAW

Upon the foregoing findings of fact, including the special findings of fact of the Court of Claims in Forest Lumber Company v. United States, 86 C. Cls. 118, which are incorporated herein and by reference made a part hereof, and which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover forty-four thousand seven hundred seventy-two dollars and sixty-two cents ($44,772.62).

1 Private Law 1088, 81st Cong., 2d Sess., January 3, 1951 (64 Stat., Part 2, p. A272), provides as follows :

Be it enacted by the Senate and, Bouse of Representatives of the United States of America in Congress assembled, That, notwithstanding the provisions of section 2103 of the Revised Statutes (U. S. C., title 25, sec. 81) and notwithstanding any statute of limitations or lapse of time or any limitation upon the jurisdiction of the Court of Claims with respect to claims upon any contract implied in law, jurisdiction is hereby conferred upon such court to hear, determine, and render judgment upon the claim of the Eorest Lumber Company either against the united States in a fiduciary capacity for the Klamath and Modoc Tribes and Xahooskin Band of Snake Indians or against said Klamath and Modoc Tribes and Yahooskin Band of Snake Indians in connection with the contract construed by such court in its decision dated January 12, 1938, in the case of Forest Lumber Company, a corporation, against the united States (86 C. Cls. 188).

Sec. 2. The amount of any judgment awarded by the Court of Claims upon such claim shall not exceed the amount of the judgment heretofore awarded by such court in the case of Forest Lumber Company, a corporation, against the united States (86 C. Cls. 188, 225).

Sec. 3. Suit upon such claim may be instituted by or on behalf of the Forest Lumber Company at any time within one year after the date of enactment of this Act. Proceedings for the determination of such claim and review thereof shall be had as in the case of claims over which such court has jurisdiction under section 1491 of title 28 of the united States Code, and the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians shall be entitled to be represented in such proceedings, if they so desire, by legal counsel employed in conformity with the provisions of section 2103 of the Revised Statutes (25 U. S. C. 81). In the trial of any such suit the Court of Claims shall have jurisdiction to hear and determine any defenses available under the rules of law and equity applicable to contracts made by the United States, defenses of waiver or estoppel based on the course of dealing between the parties, and defenses based on mistake of law or fact, including any failure to collect sums payable under tile contract involved in such suit by reason of mistake of law or fact, and shall determine the liability, if any, of the parties defendant as the facts and the law require. Parol evidence shall be admissible for the purposes of proving or disproving such defenses notwithstanding any limita-tation upon the admissibility of parol evidence in suits involving contracts in writing. Any set-oil, counterclaim, claim for damages, or other demand set up on the part of any defendant shall be heard and determined by the court in accordance with the provisions of section 2508 of title 28 of the United States Code.

Sec. 4. Any part of any judgment rendered hereunder which represents sums actually deposited to the credit of said Klamath and Modoc Tribes and Yahooskin Band of Snake Indians for timber cut from tribal lands shall be paid by the Secretary of the Treasury, upon appropriation by the Congress, from any funds in the Treasury of the United States to the credit of said tribe. Any other part of any judgment rendered shall be payable in the same manner as in the case of claims over which the Court of Claims has jurisdiction under section 1491 of title 28 of the United States Code.

1 This paragraph was the final paragraph of finding 6 by Commissioner Foster, and was omitted by the court in finding 6 of its special findings of fact.

2 This sentence is the final sentence in finding 10 by Commissioner Foster, and was omitted by the court in finding 10 of its special findings of fact.

3 This sentence was the final sentence In finding 16 by Commissioner Poster, and was omitted by the court in finding 16 of its special findings of fact.

4 All of the above material constituted finding 20 by Commissioner Roster, and was omitted in its entirety by the court from Its special findings of fact.

5 This paragraph was the last paragraph in finding 21 by Commissioner Roster. Inasmuch as the court omitted from its special findings of fact finding 20 by Commissioner Roster, his finding 21 became finding 20 of the court’s special findings of fact, which incorporated all of the commissioner’s finding 21, except the last paragraph as set forth above.

6 This finding appears as finding 21 in the court’s special findings of fact. No similar finding appeared in the report of Commissioner Foster and in the earlier case the plaintiff excepted to the failure of the commissioner to make such a finding. Nor is this finding included in the printed stipulation of the parties filed in the instant case, but the material contained therein is referred to in plaintiff’s petition and defendant’s answer and brief. Inasmuch as the parties have agreed that the stipulated facts should include any additional facts alleged in the petition and admitted in the answer, this finding of fact appears to be stipulated by the parties as a fact in the instant case. As a matter of fact defendant would be unable to argue, as it does, that the Commissioner of Indian Affairs could have raised stumpage rates in 1924, without relying on this particular finding. It is also noted that in defendant’s motion for a new trial and for amendments to the court’s findings of fact, no request was made that this finding 21 be omitted.

7 This was the last paragraph of finding 22 by Commissioner Foster, and was omitted by the court from finding 22 of its special findings of fact.

8 This was the last paragraph in finding 24 by Commissioner Foster, and was omitted by the court from finding 24 of its special findings of fact.