*1 RILEY, T. John d/b/a Shamrock
Excavating, Appellant, COMPANY,
NORTHERN COMMERCIAL DIVISION, Appellee.
MACHINERY
No. 5754.
Supreme Court of Alaska. *2 AND
I. FACTUAL PROCEDURAL
BACKGROUND Prоmissory Note Claim A. 12, 1975, Riley executed December On $51,209.20 in favor of for promissory note existing liquidated Riley’s The note NC. supplies and for services account with NC invoices, Ninety-five previously rendered. provided signed by Riley, none of which are the note. full consideration for pay- one making defaulted after Riley Fos- James H. McCollum and W. Richard ensued. litigation on the note. This McCollum, Anchorage, for sey, Bankston & he executing that in the note Riley submits appellant. all amounts acknowledge to did not intend claimed owed NC. Eide, Rudd, Anchor- Phillip Ely, & Guess age, appellee. for NC, was unable deposed by When invoices specify ninety-five which of the RABINOWITZ, BURKE, J., Before C. were, view, to Civil in his invalid. Pursuant COMPTON, CONNOR, MATTHEWS re- propounded then certain NC JJ. regarding ninety- quests for admissions substance, sought In five invoices. which of the invoices were not dis- identify OPINION puted. COMPTON, Justice. requests were due Riley’s responses (NC) Company Northern Commercial In a letter to NC’s August. near the end of 3,1978 John filed suit on November counsel, the re- Riley’s counsel stated (Ri- Excavating T. d/b/a Shamrock during the La- sponses would be furnished ley) promissory to collect amounts due on a to ex- parties agreed Day bor week. note. owing denied full indebted- deadline, September tend this first ness, addition, and in filed a counterclaim to however, Riley, then September recover unrelated amounts owed on an respond. did not Following Riley’s transaction. failure partial summary for NC filed a motion file a timely response requests to certain asserting October admissions, granted NC’s respond to the upon Riley’s failure to motion for on the summary judgment deemed admits requests, such were promissory Subsequently, note claim. ted. court also NC’s on November summary judgment responses on the contractual served his principal 19, 1979, counterclaim. a dead- appeal, Riley’s On almost two months after argument presents is that each claim triable line his already extended application issues of fact. We also was without response, Riley address stated that he prejudg- of Civil Rule 36 and the verify award of sufficient information to ment interest. ninety-five invoices.1 Riley’s response provided pertinent part: ordinary kept course of voices are in the again, only pérson (a) business. Once Defendant is without sufficient infor- plaintiff. would know that is the mation or belief as to whether the listed in- (c)Defendant copies sufficient infor- voices is without are true and correct originals. only person he received mation and belief as to whether who would know plaintiff. parts that is in the invoic- or services referred to (b) Defendant is without sufficient infor- es. Dеfendant does not remember signed mation or belief since he has not as to whether the listed in- these invoices and Ratzlaff,
B. Counterclaim of the mistake. There is some whether Ratzlaff ambiguity referred Riley initially performed excavation and Reese, to Mark or whether Ratzlaff himself backfilling services for to an pursuant pursued the matter with Reese.2 Under oral agreement. provided That contract version, either Riley claims that Reese ulti- lump payment. sum Riley performed ad- mately agreed correct the matter. Reese ditional contemplated by work not the oral *3 is now deceased. Riley completed рerform- work, agreement. part For of Riley this ance of the contract in and ac- obtained payment extra at the rate of $2.40 per cepted ton final for gravel supplied. payment fill the excavation specified work at the rate in the contract. negotiated subsequently pursue His failure to this claim immediate- Riley perform contract for to more exten- asserts, ly, he is attributable to the parties’ sive backfilling excavation and work. Riley long relationship. business submits that the written contract followed understanding an to “work it on the same contract,
principles.” The prepared by II. NOTE CLAIM PROMISSORY agent NC’s consulting engi- served as A. Deemed Admissions neers on project, consulting firm of Reese, Mark G. stated payment that Riley argues that court erred be at a rate of cubic of filled yard $3.33 deeming requests in NC’s for admissions gravel. Riley signed April contract admitted.3 We thus address whether it was 17, 1975, purportedly under the mistaken abuse of discretion for the impression that Reese had calculated the respons to fail to allow to submit late Riley rate of payment (in in the second contract es to requests NC’s for admissions. See terms of yardage) equiva- filled to be the Co., 201, 204 Palzer v. Serv-U-Meat lent of in employed the first n.13 Thomp cf. Miracle v. (in tons). contract terms оf Riley cites in son, (Alaska 1978)(abuse regard this a letter from Reese which states of discretion in review of Rule standard that “we herewith authorize an extension 60(b) motion). previous you proceed contract for subject excavation and backfill.” as- problem At issue is the vexatious serts that NC was aware of his misunder- untimely requests how to treat answers to standing at the time the contract was for proper admissions. NC submits that it formed. ly appropriate procedure utilized the litigation, streamline the obtaining pending
After
that
progress
his first
pay-
ment, Riley realized
if Civil Rule 36 is to
value in
any
that the rates of
serve
pay-
ment were in fact not еquivalent. Riley expediting litigation, Riley should not be
then notified NC’s store manager, Gary
responses
cursory
allowed
submit
almost
them,
any
reasonably
contrast, Riley’s
he
believes he did
with Ratzlaff.
affidavit
any
receive
of them.
suggests
merely
Defendant has
that Ratzlaff
referred
inquiry
made
Reese,
reasonable
into
Riley subsequently
his records and
and that
met with
these records do not reflect
Fomby,
defendant
Reese himself.
affidavit
Dale
parts
ever received
of these
and/or serv-
Riley’s employee, supports this version.
ices.
(d)
owing
Defendant
denies
sums
file
did not
a motion to withdraw a
by plaintiff.
claimed
admission,
prescribed by
deemed
the method
requests
A number of the
for admissions con-
Equal Employment Opportunity
Rule 36. subpart
(e). Riley
tained
submits that he did
Baby
Comm’n v.
Prods.
given long and active business appli We recently summarized relationship. Many the invoices con- legal principles: cable cerned service allegedly work which NC A party summary judg- is entitled to performed on Riley’s equipment. It is rea- ment when “the pleadings, depositions, sonable to assume that the infor- requisite interrogatories, answers to and admis- mation to confirm deny or such invoices file, affidavits, together sions with the upon would be accessible reasonable in- genuine show that there is no as to issue quiry.10 material fact and that [the] We conclude that the trial court did not entitled to as a law.” matter of abuse its discretion in the present case. 56(c). determining Alaska R.Civ.P. *5 Civil Rule 36 is intended expedite litiga- whether summary judgment рroper tion through the elimination of uncontested case, particular a the trial court’s func- sure, issues. To be compel Rule 36 does not determining tion is limited to whether or the rejection automatic responses. of late genuine not a issue of material fact ex- demonstrates, As the result in Palzer such Pollet, 381, ists. Wilson v. 384 rigid rule unjustified would result in the (Alaska 1966). Where record suppression of the merits. In the same fact, presents such an ques- issue vein, however, too liberal sufferance of a ruling tion must be resolved at trial. “In litigant’s procrastination is equally undesir- on a all summary judgment able, since such policy would undermine proofs of- reаsonable inferences from purposes of the rule. The superior fered are drawn movant and court must therefore exercise its discretion light viewed in the most favorable to the to balance the desirability expediting litigation party opposing with need the motion.” Id. at 383- promote presen- tation of the Upon Rent-A-Car, merits. our review of also Alaska Inc. v. See Moses, 397, performed 8. See Moses v. 180 Colo. 10.The invoices service work (1973) (en banc) (trial 1302 equipment allegedly court abused its owned were dated failing response discretion in to allow late since and included a serial number identification interrogatories clearly placed equipment description answers to mat- involved as well as a dispute). performed. ter in of the work answering party may give “An lack of party 9. Where a submits an re- insufficient knowledge as a reason for fail- information or ure to admit or sponse, may the court take the matter as ad- deny unless he states that he mitted or order a further answer. Alaska inquiry the infor- has made reasonable and that generally Wright R.Civ.P. 36. See 8 C. & A. readily him is mation known or obtainable Miller, Federal Practice and Procedure 2261 deny.” insufficient to enable him to admit or (1970). Alternatively, requesting party merely 36. A denial which Alaska R.Civ.P. tracks the Rulе 36 compel responding file a motion language does not necessari- respond greater specificity. ly satisfy respondent’s obligation to avoid Cosmetics, Inc., Pomianowski v. Merle Norman evasive or meritless denials. See Asea F.Supp. (S.D.Ohio 1980). 507 439 Transp. 1246 Southern Pac. 669 F.2d (9th 1981). Cir. 966 essentially in this motion restate identified 1139
Ford Motor Haner, contention that the full indebtedness Ransom v. 362 (Alaska Riley submits 1961). Thus, appeal, was not owed. On n.24 P.2d the contention that that at least judgment party seeking summary re- procedure to a settlement agreed had that his proving “has the entire burden of settle- dispute. Any purported mained in opponent’s case hаs no merit.” Nizinski of little though, would be procedure, Ass’n., Inc., 509 Valley Electric Golden since the effect of the admis- consequence, (Alaska 1973), quoting P.2d amounts acknowledge that all sions was White, Braund, P.2d the other Similarly, were in fact owed. signifi- no by Riley issues identified had Municipality Anchorage, Williams v. were deemed ad- cance after the (Alaska 1981). pro entry partial mitted. “conclusively vides that admissions are es judgment proper.13 purposes litigation. tablished” for Travel, Inc., Molitor v. ATZ Post-judgment Prejudgment C. (Alaska 1976).11 Summary Interest
therefore, may be based on deemed admis dispositive. sions if such facts are Palzer v. respect The last issue with 206; Co., 419 P.2d at Moоs Serv-U-Meat pre the award of promissory note concerns Blitz, Inc., man Joseph P. 358 F.2d interest. The post-judgment Furthermore, (2d Cir. since note, in December executed the entire in deemed admissions validated pay “inter provided debtedness, met its initial burden to lawful maturity est after show summary judgment. entitlement on July contract rate.” The note matured Thus, Riley produce had the burden to com 2, 1976. petent showing evidence there were Where a contract does not contain material dispute.12 issues still in agreement, prejudgment interest express
We conclude that failed to es is set at the rate. 45.45.- tablish that material issues remained in dis 010(a).14 рarties may agree Alternatively, *6 pute. Riley genuine interest, filed a statement of to an rate providing opposition issues in par to NC’s motion for that such a rate does not exceed the rate tial summary judgment. The five proscribed by application issues of the variable Dependahl Brewing summary judgment appeal. 11. But see v. Falstaff See Williams v. 1188, Corp., F.Supp. (E.D.Mo.1980) Valdez, 483, City (Alaska 1979). 491 1194 P.2d 603 488 (deemed given admissions not conclusive ef- executed, 14.At the time the contract was as fect, only evidence). but considered as matured, 45.45.010(a) well as when the debt AS legal set the rate An of interest at amend- 6%. Borough 12. State v. Fairbanks N. Star School 45.45.010(a), September to AS effective Dist., 1329, 621 P.2d 1331 Totem 12, 1976, legal raised the rate of interest to 8%. Tug Barge, Alyeska Pipe Ma rine & 159, 1, Ch. SLA 1976. § Co., 15, (Alaska 1978). line Serv. 24 legal Amendments to the rate of interest af accrued, ter the action but before during argument 13. We note that oral on NC’s govern they from the date become effective. summary judgment, Riley’s counsel City Borough of Juneau Commercial stated: Co., 957, (Alaska Union P.2d 959 Ins. 598 So if Tra-Mar, Inc., this court —if this court 1979); deems 33 A.D. Rachlin & Co. v. purposes litigation 153, of this that the Admis- 308 N.Y.S.2d 158 Were AS admitted, sions are 45.45.010(a) applicable deemed then the —Mr. contro prevailed Summary Judgment Eide has versy, in his prejudgment interest would therefore Summary Judg- through Mоtion. He is September entitled to from set at 6% only 12, 1976, ment. The issues left in the case is on and thereafter at A 1980 amend 8%. 45.45.010(a), legal counterclaim. raised ment to AS which applicability. We need 10.5%, not address whether this statement rate of interest no has prevents Riley challenging entry from 4 SLA §§ Ch. agreement. rate formula set forth in 45.45.- The AS note does not spe- state a 010(b).15 cific rate of interest. Nor does it expressly refer to the variable interest rate formula court awarded prejudg- set 45.45.010(b). forth in AS omis- Such ment interest at the rate of nine and one- sions, however, do not necessarily render half cent. This result reflects an inter- 45.45.010(b) inapplicable. AS “The terms pretation provision the interest in the ‘highest legal interest,’ interest’ or ‘lawful note require Riley to pay interest on the distinguished as legal interest, from means highest note at the rate sanctioned by AS up rate of interest 45.45.010(b)at that fixed by the date of maturity. Riley statute as the maximum that the did not rate at which in- “expressly agree” rate, to an interest so terest can be appli- that the contracted for.” 45 Am. Jur.2d, governed cable rate is 45.45.010(a), Interest and Usury AS at 16-17 (1969). Quite alternatively, that interest should be simply, rate set forth in determined by 45.45.010(b) reference to 45.45.010(a) AS is not the highest legal rate as it interest; existed at the time the contract was of only by application of the vari- executed, not when the debt matured.16 able possible interest rate formula is it ascertain the of interest. “The purpose of contract interpretation is Riley and specifically addressed to ascertain and effectuate the reasonable terest rate issue in negotiating contract. expectations parties.” Stordahl v. The contractual provision they adopted is Co., Government Employees Insurance sufficient in our view to constitute an ex- (Alaska P.2d 1977); Wright accord press Here, interest agreement.17 the ex- 490, 497 Vickaryous, (Alaska 1979); press agreement is to set intеrest at the Day v. A & G Construction highest rate by application sanctioned (Alaska 1974). Since neither party the variable interest rate formula. To hold alleges that the surrounding circumstances otherwise in an era of interest rate instabil- are in dispute, interpretation of the words ity unduly impair the ability par- of the contract is appeal treated on in the ties to a commercial transaction to allocate same questions manner as of law. Wessells the risk nonperformance. Day v. A & G Construction argument alternative is that any Thus, P.2d at 443. this court “need not “express agreement” in the note at most defer to the judgment of thе trial 45.45.010(b) referred to AS as it existed ” judge.... LeGrue, Alesna v. 614 P.2d the time the executed the contract. statutory formula was modified subse- reject
We first
Riley’s argument
quent
to the formation of the contract but
note does not contain an express interest
support
before the debt matured.
of his
matured,
Dist.,
15. At the
Borough
time the debt
AS 45.45.-
N. Star
School
*7
010(b) provided:
(Alaska 1981);
1331 n.4
Wessells v.
may
charged
by express
No interest
Consequently,
be
P.2d
Riley
agreement
parties
any ambiguities
the
in a contract or loan
submits that
should
commitment
NC,
dated after
June
1976 which
resolved
the
who drafted the
percentage points
is more than five
Owens,
above the
agreement. Sеe Tsakres v.
charged
annual rate
member
for
banks
ad-
Const.,
Modern
by
vances
that
the 12th Federal Reserve District
Barce, Inc.,
prevailed
day
on the 25th
of the month
present
We conclude that in the
context
preceding the commencement of the calendar
provision
the contractual
after matu
—interest
quarter during which the contract or loan
rity
highest
at the
lawful contract rate —is not
commitment is made. A contract or loan
ambiguous.
principal
commitment in which the
amount
$100,000 exempt
exceeds
is
from the limita-
Corp.
17.But
see Universal C.I.T. Credit
v. In
tion of this subsection.
gel,
(1964)
347 Mass.
196 N.E.2d
(interest
also
16.
provi-
legal
notwithstanding
that thе contractual
due at
provided “highest
ambiguous
reasonably subject
sion is
to
rate”).
since it is
the note
lawful
differing interpretations.
State v. Fairbanks
provi-
interest
45.45.010(b) parties adopted
usurious
Riley notes that AS
position,
formu-
time a contract or loan commit-
expressly provides that the amended
sion at the
here,
dated after June
applies only
question,
la
to contracts
ment was executed. The
4, 1976,
signed
subsequent legislative
whereas
enact-
not whether
1975.
note December
interest or an
ment validates a rate of
which was usurious when
interest formula
argu-
persuaded by Riley’s
We are not
executed,
agree to
рarties may
but whether
trans-
ment.
In the context of the
maximum inter-
by whatever the
be bound
action,
with the intent
it is most consistent
maturity.
be at the date of
est rate
interpret “highest
to
lawful
at least where the inter-
We conclude that
as an
to be
maturity”
agreement
rate at
to establish com-
provision
est
is intended
for-
by
statutory
bound modifications to the
the detention of
damages for
pensatory
prior maturity.
mula enacted
to
This is not
language does
money,
statutory
nego-
to
parties attempted
a case where the
from agree-
to a contract
preclude parties
Rather,
tiate a cost of credit.
it is most
future modifications in
ing
to be bound
likely
intended the interest
statutory formula.22
provision
indemnify
damages
to
NC for
by Riley’s
perform.
curred
failure to
As
inter-
disposition
prejudgment
Our
persuasively argues, Riley
could have
court’s
est
issue validates
avoided all interest
timely repay-
interest at the rate
post-judgment
award of
ment of the debt.18 It would be anomalous
per cent.
09.30.070
of nine and one-half
which,
adopt
rising
to
a rule
due to
interest
provides
post-judg-
rate of
rates,
failing
perform,
rewards
unless
ment interest is
and,
generally,
more
creates an incentive
specifies a
is on a written contract which
for debtors
default.19
promis-
interpret
rate of interest. We
the note
give
Our decision
effect to
inter-
sory
specify
prejudgment
note to
provision in a manner most consistent with
cent, the
per
est is set at nine and one-half
parties’
contrary
intent is not
of matu-
rate allowable on the date
statutory
recognize
limitation. We
that at
45.45.010(b)interest
rity pursuant to the AS
45.45.010(b)pro-
the time of maturity AS
proper
It was therefore
rate formula.
applied
vided that
formula
amended
post-judg-
court to award NC
only to contracts executed after June
nine and one-
ment interest at the rate of
1976.20 It is our view that the limitation
half
cent.
statutory
reflects
rule that a
the settled
amendmеnt of the
rate will
legal II.
CONTRACTUAL
RILEY’S
applied
not be
retroactively if it alters
COUNTERCLAIM
rights
existing
and duties under an
con-
Thus, the
statutory
Riley argues
inappropriate
tract.21
limitation bars
that it was
application
concerning
of the amended formula where
resolve the counterclaim
legislature
enforcing
subsequently
the re-
18. This rationale is noted in cases
deleted
agreements
pay
maturity
application of the revised formula
interest after
at a
striction on
higher
usury
dated after
permitted
to contracts or loan commitments
rate than
laws.
1, 2,
Annot.,
SLA
generally
(1969)
June
1976. Ch.
§§
28 A.L.R.3d
(“Provision
Maturity At A
For Interest After
Am.Jur.,
Usury
generally
21. See
Interest and
Legal
Ratе in
As Usurious
Excess Of
Rate
Or
Annot.,
(1969);
at 23-25
A.L.R.2d 932
Illegal”).
Otherwise
*8
Mid-Jersey
Fidelity-Mort-
19. See
Bank
Nat’l
v.
Gawart, Mich.App.
Campbell
cf.
v.
46
22. But
gage Investors,
640,
(3rd
518 F.2d
645
Cir.
529,
(1973) (in land sale con-
969 where, of services Reformation is payment by appropriate for excavation summary judgment.23 mistake, of mutual agree. by We reason the written does agreement not accurately reflect trial court NC’s v. bargain intended Durkee summary judgment on the contractual Busk, 588, (Alaska 591 Ref 1960). 355 P.2d counterclaim, of the belief apparently out party ormation also available where is “a the purported that mistake in actuality was knowing written executes a instrument in an error business and in any the other terms intention of as to the event, was Riley’s unilateral error. The therein, knowing to be and embodied noted that Riley experienced court was an writing express does accurately not [the] excavator, thus suggesting Riley Hill, P.2d Straight that intention.” v. 622 have been payment should aware that at 425, (Alaska 1981) Holiday Inns quоting 428 per yard equivalent cubic is not the of $3.33 America, Peck, 94 520 P.2d per at ton. $2.40 Wolfe, (Alaska also v. See Gablick general rule is is that reformation gener 394 469 P.3d not available obtain relief from unilat- Corbin, Corbin on ally § A. Contracts eral mistake. Lathrop Lampert, Co. v. 583 (1960); at 692 Restatement of Contracts (Alaska Alaska Hill, (1932). Straight at Foods, Inc. v. American Manufacturer’s concluded, particularly this in words court Mutual Insurance case, applicable that: 1971). NC, (Alaska apparently trial there was which Whether a mistake for well, as court view as an at- Riley’s claim de should be allowed will reformation tempt renegotiate rate after thе contract part on the pend credibility in discovering margin was in- profit in whom the relied affiants length sufficient. As ap- at judg opposing summary seeking and peal, reformation is not to obtain available credibility are questions of ment. Such relief from a mistake of business trial, particularly apt for resolution at regarding express- a risk which the contract summary judgment proceedings. in allocates to the ly aggrieved party. Fowler Wolfe, quoting Gablick v. City Anchorage, 583 P.2d P.2d at (Alaska 1978). This view that Ri- assumes argument. also raises a related ley, an excavator for should have years, agent that an agreed He contends of NC consequences pay- known the rate of during contract the course reform the specified in the contract.24 such performance. NC submits that view, however, In our trial both the was is of no effect since it modification misperceive legal argu- and NC the central Riley, unsupported by consideration. gravamen ment advanced by Riley. The under an contractual argues, existing counterclaim is entered that he perform the work at the terms obligation impression contract under the mistaken position stated in contract. NC’s the rate of in the payment specified on the view that had again premised contract, per yard gravel cubic $3.33 Assuming obtain reformation. no basis to excavation, equivalent filled was the requisite proof can establish the ton gravel, the rate used reformation, $2.40 to be entitled consideration prior impor- in a More transaction. for the modification is oral furnished tantly, avers that aware that NC was Stinnett, itself. compromise See Fieser v. entered into the contract under this Kan. deposition Thus, existed, mistake. Riley’s affidavit and whether oral contract so, contract, adequately position. corroborate his if what were the terms of the previously Anchorage Paving Asphalt 23. We 24. See Lewis set forth the principles 1978) (еxperienced in review con- of a motion judgment. charged knowledge tractor of subsurface conditions). soil *9 45.45.010(b)as 1976 is control- modified in only of can be fact which present questions amendment, raised the Hastreiter, ling; the 1976 which at trial. Curran resolved rate,1 by lawful is its v. maximum interest Jackson the White, inapplicable to the note and thus terms controlling. rate preamendment is support motion Riley submitted unambiguously NC noted that The 1976 amendment which the contract billings to NC used applicable only $3.33 states that it is to contracts accepted gravel 4, 1976; rate for and that v/as Riley’s dated after June note facts the at rate. Such final assuming $3.33 dаted December 1975. Even finding that necessarily preclude a do not in parties changes the intended or, in the alterna- is warranted reformation ap- statutory ceiling the interest tive, the contract. the modified note, legisla- the plicable to the in this case Riley’s of requisite the elements Though change applicable ture did not the rate estab- may prove difficult to counterclaim the note and thus intent is parties’ is lish, conclude that the counterclaim we Therefore, irrelevant. appropriate particularly is premised theory on a which by pre- terest rate is that prescribed by apt for resolution trial.25 45.45.010(b). amendment version of AS of is The court part, in part,
AFFIRMED in REVERSED proceedings
and REMANDED for further
in opinion.26 accordance this
RABINOWITZ, Justice, in dissenting part. OF SISTERS PROVIDENCE IN WASH I find that I am with the agree unable INGTON, INC., Appellant, majority’s ruling on the of the rate question prejudgment postjudgment DEPARTMENT OF HEALTH AND SO Riley. by note executed SERVICES, Alaska, CIAL State provided note “interest after Clinic, Inc., Appellees. Lake Otis maturity at lawful contract highest No. 6156. agree ruling rate.” I do with the court’s that “the rate” re- lawful contract Supreme Court of Alaska. prescribed by fers to rate 45.45.- AS 1982. 010(b) charged maximum that can be —the having without a contract—rather usurious Rehearing Amended Denial As than the rate 45.45.- by established AS 30, 1982. Sept. 010(a), applies which when a contract does agreе, not state an I do not interest rate. AS by the rate established
however, that
arguments
parties’
We need
address the
is not avail-
that reformation
25. NC also
attorney’s
The
concerning
fees.
fully
award
executed
where the contract has been
able
light
attorney’s
in
is vacated
award of
fees
rejected
in
similar claim
We
a
both
disposition
issue. We
Wolfe,
only
our
the counterclaim
395-96.
Gablick
P.2d at
ultimately prevail
were NC
note that
counterclaim,
NC,
Board of Trustees
authority
cited
may consider
Training
Boys
D. Wilson
School for
v. O.
Nat’l
ascertaining
appropriate
both claims
(D.C.Cir.1943),
inapplicable
is