(dissenting).
The threshold question concerns the application of the “law of the case” doctrine. I think the court applies this-doctrine incorrectly.
The Uline Arena was opened early in 1941 for the production of shows, indoor *894athletic contests and other entertainments. On November 14, 1941, Jacobs Brothers and Uline entered into a contract, to expire June 15, 1947, under which Jacobs Brothers obtained exclusive concession rights for the sale of refreshments, novelties, programs and program advertising, in return for specified percentages of the concessionaire’s gross sales receipts. By an exchange of letters in July and August of 1945, the parties amended the contract “in order to provide that the defendant would construct and install a new counter in the Arena and * *
“proceed with such and other improvements and installations of equipment and uniforms as you [Uline] may desire * * * with the understanding that our agreement is renewed and automatically extends itself for such yearly periods as are required to amortize at the rate of $1,000 a year the amounts expended by us [Jacobs Brothers] for such improvements and installations. To amplify, if we expend $2,000 our agreement would be considered extended until June 15,1949, and the same extension procedure is to apply to any similar expenditures that we may make from time to time with data, of course, being submitted to you as you may direct.”
In 1946 Jacobs Brothers assigned their interest to Washington Sportservice, our present appellant.
Sportservice spent $37,500 for concession facilities constituting capital improvements to the Arena. On May 19, 1955, Uline notified Sportservice of its desire to terminate the contract. Sport-service denied Uline’s right to do so, and Uline filed its complaint asking for declaratory judgment and other relief on July 27, 1955.
Uline has insisted throughout upon the right unilaterally to terminate the amended agreement because (1) if viewed as a lease it creates a statutory tenancy by sufferance which is terminable at any time by written notice (D.C.Code §§ 45-820, 45-904 (1961)); and (2) if viewed as a contract it is unenforceable for want of “mutuality.” Sportservice, on the other hand, has urged that the amended agreement is a lease for a number of years (D.C.Code § 45-818 (1961)), made definite by mutually desired expenditures pursuant to the amended agreement.
The District Court in which the case was first litigated adopted Uline’s contentions.1 Sportservice thereupon brought its first appeal to this court.
In that appeal Uline urged an additional argument for the first time: that it had the right to terminate the contract by virtue of a termination clause included by the parties themselves in the 1945 amendments.2 This court found that the record disclosed no clear finding on whether the termination clause was, in fact, included. Without expressly determining whether the agreement was unilaterally terminated for the reasons found below, this court set aside the judgment and remanded the case for a finding respecting the termination clause in “further proceedings consistent with the opinion of this court.” Washington Sportservice, Inc. v. M. J. Uline Co., 107 U.S.App.D.C. 277, 276 F.2d 523 (1960).
On remand, no new evidence was offered. The District Court, by another judge, found that the termination clause was not included. Except in respect to matters not pertinent here, the court *895adopted the earlier findings 3 and considered that the term of the extension was “indefinite”; that Sportservice was holding over under an expired lease (the original 1941 agreement had expired in 1947); that the tenancy was therefore one by sufferance, D.C.Code § 45-820 (1961), which could be terminated at any time upon written notice, D.C.Code § 45-904 (1961);4 that Uline terminated the tenancy by filing suit in 1955; 5 and that the amended contract lacked mutuality.6
The present appeal followed. Sport-service urges at the outset that our decision in the former appeal must be read as rejecting the grounds upon which the District Court held the amended agreement unilaterally terminable; arid that our remand limited the District Court’s consideration to the new ground, namely, whether that agreement included the clause authorizing unilateral termination. And since the District Court on remand found that clause was not included in the agreement, Sportservice contends the court was bound by the “law of the case” to render judgment in its favor.
I think, however, that the “law of the case” doctrine does not support this contention.
It is indisputable as a general proposition that the lower court is bound by the mandate as the law of the case and is without power to consider questions which the mandate laid at rest.7 Although, at the appellate level, the rule is merely a rule of practice rather than a limitation on our power,8 we depart from it only in a clear case “showing that the earlier adjudication was plainly wrong and that application of the rule would work manifest injustice * * 9
The doctrine as thus stated determines the weight to be attached to the law of the case, but “does not tell us what issues were laid at rest.”10 In deciding *896what issues are laid at rest by an appellate court decision, there is a distinction between an affirmance and a reversal. As “the Supreme Court put it in a leading ■case:
“When a case is presented to an appellate court it * * * may order a reversal without entering into any inquiry or determination of other questions. While undoubtedly an affirmance of a judgment is to be considered an adjudication by the appellate court that none of the claims of error are well founded — even though all are not specifically referred to in the opinion — yet no such conclusion follows in case of a reversal. * * * Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided.”11
■Omissions,12 contentions of counsel not responded to,13 and obiter dicta14 do not •constitute bases from which the law of the case may properly be inferred. These principles are well settled.15
In light of these principles, I examine ■our prior opinion herein. First we said:
“The question now before us is whether the agreement allows a cancellation at the option of the Uline Company before the expiration of the term and, if so, under what conditions.” [276 F.2d 523.]
As the majority today recognizes, there were several other questions before us in the earlier appeal in addition to the stated question whether the agreement itself provided for cancellation. By “the question now before us” I think we meant “the only question we now consider and decide.” After a partial statement of the facts, we said:
“Whether Uline Arena has the right to terminate the refreshment contract on payment of the expenditures by the lessee, less amortization of the installations made by Sportservice, depends, it appears to us, upon whether the termination sentence is in the agreement as finally settled by the parties. No finding of fact was made as to this issue.”
The right of termination upon payment of expenditures less amortization was precisely what the disputed termination clause provided. (Note 2 supra.) Whether Uline could exercise the right depended upon a finding of fact whether the parties included the termination clause in their final agreement. And the record lacked this essential finding.16 *897Had the District Court on remand found that the parties themselves had in fact included the clause, that would have been dispositive of the case and would have mooted the remaining legal issues. It hardly follows from our declining to decide legal issues which might be mooted by a finding of fact, that we intended to decide the very issues which might thus have become moot. The only necessary result of our discovery that the record lacked an essential finding of fact was to:
“ * * * set aside the judgment of the District Court and remand the case for a determination as to the content of the contract under which the Sportservice made the installation.”
That was the only explicit condition of our remand, as the final sentence of our opinion made clear:
“With the determination of the issue as to the content of the contract, the District Court on this remand will be free to enter such judgment as it may be advised as to the obligations between the respective parties.”
I respectfully submit that the majority today implies17 that we ruled upon matters which we did not even consider. All the issues on the merits were briefed and argued to this court on the first appeal. I think our failure to express any views thereon evidences our intention not to consider them at that time. The only support for implying a contrary intention must be drawn from omissions, contentions of counsel not responded to, and perhaps dictum. As noted earlier, such matters do not support application of the law of the case.
Moreover, our prior opinion did not state all of the facts essential for consideration of the merits; it contained no citations of authority; and it in no way indicated wherein the District Court had erred. And although the merits present close and difficult legal questions, as noted below,18 neither our prior opinion nor our present one asserts any legal theory for upholding the validity of the contract. In such circumstances, when the court applies the “law of the case,” I respectfully submit that the effect is not to cut off reconsideration of the merits, but to cut off any consideration at all. I therefore dissent.19
. On the ground that the contract was binding to the extent that it had been performed prior to June 15, 1951, and in order to prevent unjust enrichment of Uline, the court ordered Uline to pay $37,500 less $6,000 “which is the reasonable depreciation thereon to June 15, 1951.” On that date Uline had terminated the contract by inserting “which expires June 15, 1951” after the word “contract” in its written consent of May 2, 1951 to an assignment by Sportservice to a wholly-owned subsidiary.
. The disputed clause read: “If Uline Arena wishes to discontinue contract, they may do so by paying to Jacobs Brothers the unamortized part of expenditures after June 15, 1947.”
. The District Court did change some of the findings of fact made by the earlier District Court. See Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131 (2d Cir. 1956); Epstein v. Goldstein, 110 F. 2d 747 (2d Cir. 1940); Communist Party of the United States v. Subversive Act. Con. Bd., 102 U.S.App.D.C. 395, 402-403, 254 F.2d 314, 321-322 (1958); Wilson v. Newburgh, 42 App.D.C. 407 (1914); 5 Moore’s Federal Practice §§ 52.06 [2], 52.13 (1951). But the changes are pertinent only to the issue of the amount of restitution awarded to appellant. Since neither party on this appeal has challenged the District Court’s restitution award, we need not consider the issue.
. In order to avoid unjust enrichment, the court awarded Sportservice $37,500 cost minus $10,000 “reasonable amortization” to the time of filing suit.
. Cf. note 1 supra.
. Lack of mutuality was apparently based on a “finding of fact” that “it was the understanding of the parties * * * that defendant could make * * * [improvements] * • * at any future time and in any amount that it saw fit, and that every time it expended a thousand dollars, the lease would be extended one year.” Cf. text of amending clause, supra p. 1.
The first District Court based lack of mutuality on a conclusion of law that appellant “is not bound to perform the services incident to the concession contract and may cease to render the same at any time according to its wliim or wish without * * * notice * * * and without any penalty.”
. Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); In re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895); Mayflower Hotel Stock P. Com. v. Mayflower Hotel Corp., 89 U.S.App.D.C. 171, 193 F.2d 666 (1951); Washington Post Co. v. Chaloner, 47 App.D.C. 66 (1917), reversed on other grounds, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Warner v. Grayson, 24 App.D.C. 55 (1904).
. Davis v. Davis, 68 App.D.C. 240, 96 F.2d 512 (1938); Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912).
. Brown v. Gesellschaft fur Drahtlose Tel., M.b.H., 70 App.D.C. 94, 104 F.2d 227 (1939) .
. Federal Communications Comm’n v. Pottsville Broadcasting Co., 809 U.S. 134, 140-141, 60 S.Ct. 437, 440, 84 L.Ed. 656 (1940) .
. Mutual Life Ins Co. of New York v. Hill, 193 U.S. 551, 553-554, 24 S.Ct. 538, 48 L.Ed. 788 (1904), emphasis supplied.
. Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 36, 41 S.Ct. 276, 65 L.Ed. 549 (1921).
. Ibid.
. Barney v. Winona etc., R. Co., 117 U.S. 228, 231, 6 S.Ct. 654, 29 L.Ed. 858 (1886).
. Communist Party of the United States v. Subversive Act. Con. Bd., 102 U.S. App.D.C. 395, 402-403, 254 F.2d 314, 321-322 (1958); Christoffel v. United States, 94 U.S.App.D.C. 168, 214 F.2d 265, cert. denied, 348 U.S. 850, 75 S.Ct. 75, 99 L.Ed. 670 (1954); Mayflower Hotel Stock P. Com. v. Mayflower Hotel Corp., 89 U.S.App.D.C. 171, 193 F.2d 666 (1951).
Hayat Carpet Cleaning Co. v. Northern Assur. Co., 69 F.2d 805 (2d Cir. 1934 (L. Hand, J.)); Liberty Nat. Bank v. Bear, 4 F.2d 240 (4th Cir.), cert. denied, 268 U:S. 693, 45 S.Ct. 512, 69 L.Ed. 1160 (1925); Seagraves v. Wallace, 69 F.2d 163 (5th Cir. 1934); Reynolds Spring Co. v. L. A. Young Industries, 101 F.2d 257 (6th Cir. 1939); Connett v. City of Jerseyville, 110 F.2d 1015 (7th Cir. 1940); Des Moines Terminal Co. v. Des Moines Ry. Co., 52 F.2d 616 (8th Cir. 1931); Hansen & Rowland v. C. F. Lytle Co., 167 F.2d 998 (9th Cir. 1948). See 1 Moore’s Federal Practice 4235 (1961). See generally 1 Moore’s Federal Practice 4017-23 (1961); Note, Successive Appeals and Law of the Case, 62 Harv.L. Rev. 286 (1948); Annot., 1 A.L.R. 725 (1919); Note, 34 L.R.A. 321 (1915); 5B C.J.S. Appeal and Error §§ 1821— 1823, 1964 (1958); 3 Am.Jur. Appeal and Error §§ 994^-996 (1936).
. Cf. Von Der Heydt v. Rogers, 102 U.S. App.D.C. 114, 251 F.2d 17 (1958); Fed. R.Civ.P. Rule 52(a).
. Compare Mayflower Hotel Stock P. Com. v. Mayflower Hotel Corp., 89 U.S. App.D.C. 171, 193 F.2d 666 (1951); and Sorensen v. Pyrate Corp., 65 F.2d 982 (9th Cir. 1933) ; with Christoffel v. United States, 94 U.S.App.D.C. 168, 214 F.2d 265, cert. denied, 348 U.S. 850, 75 S.Ct. 75, 99 L.Ed. 670 (1954).
. That the contract may be a valid lease for a term of years, see Flagg v. Dow, 99 Mass. 18 (1868); Bishop of Bath’s Case, 77 Eng.Rep. 303, 6 Co.Rep. 34b; Smith’s Transfer & Storage Co. v. Hawkins, 50 A.2d 267 (D.C.Mun.Ct.App. 1946); Strack v. Fradus, 168 N.Y.S. 530 (Sup.Ct.1918). That the contract was not sufficiently definite to create a valid lease for a term of years, see Say v. Smith, 75 Eng.Rep. 410, 1 Plow. 269 (1530); Stanmeyer v. Davis, 321 Ill.App. 227, 53 N.E.2d 22 (1944); Morse v. Brainard, 42 App.D.C. 448 (1914); O’Reilly v. Frye, 263 Mass. 318, 160 N.E. 829 (1928), and eases cited therein; Annot., 43 A.L.R. 1451 (1926); 32 Am.Jur. Landlord & Tenant § 62 (1941); Note, 2 Ark.L.Rev. 126 (1947). That the amended agreement is not a lease but rather a license, see Thayer v. Brainerd, 47 A.2d 787 (D.C.Mun.Ct. App.1946); Tips v. United States, 70 F.2d 525 (5th Cir. 1934); R. H. White Co. v. Jerome H. Remick, 198 Mass. 41, 84 N.E. 113 (1908); Norman v. Century Athletic Club, 193 Md. 584, 594, 69 A.2d 466 (1949); Frank Warr & Co. v. London County Council, 1 K.B. 713 (1904). See generally 32 Am.Jur. Landlord & Tenant § 5 (1941); Conrad, An Analysis of Licenses in Land, 42 Columb.L.Rev. 809, 815 (1942); Clark, Real Covenants and Other Interests Which Run With the Land (1947). Since the legal questions which underlie the merits appear difficult indeed, we should not lightly imply an intention to resolve them without discussion in our prior opinion.
. The court’s disposition today makes it unnecessary for me to express any opinion regarding the merits of this controversy.