#### CARL U. ACKERLIND, ADMINISTRATOR OF THE ESTATE OF ERICK LIND, DECEASED, *v.*THE UNITED STATES.

[49 C. Cls. It., 635; 240 U. S. K„ 531.]

In March, 1905, a contract in two parts was entered into between Erick Lind, since deceased, and the United States acting by a purchasing pay officer of the Navy pay office, New York, for the transportation and delivery of coal to such place in the naval coal depot, Sangley Point, Manila Bay, as the commandant thereof may direct, and this suit seeks a reformation of the contract and judgment for certain items disallowed by the accounting officers of the Treasury.

The court below decides:

The right to reform a written instrument so as to make it speak the intention of the parties when, by a mutual mistake of the parties, the terms of the agreement between them are not correctly expressed in the instrument as written is unquestioned.

The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction, and this court has jurisdiction under the statute to reform contracts as courts of equity may.

Where the agreement, as reduced to writing, omits or contains terms or stipulations contrary to the common intention of the parties the instrument will be corrected so as to make it conform to their real intent.

Where the relief is sought upon the ground of mistake alone, there being no fraud or questionable conduct, the mistake must be mutual and not merely the mistake of one of the parties.

Where a contract has been executed there is a strong presumption to be indulged that it correctly expresses the intention of the parties. This presumption is not easily removed, and the burden of proof is upon the party seeking the reformation.

It is a well-settled doctrine that one who deals with a Government official is bound to know the extent of his authority.

The proof of the mutual mistake which is relied on to reform a written instrument must refer to a mistake which both parties made when they executed it and, therefore, to some agreement between them which is not correctly expressed in the written instrument.

Where the statute requires contracts to be in writing and signed by the contracting parties, it is the duty of the contractor to see that the contract correctly expresses his intentions before signing it; and, if it does not do so, he must bear the consequences of his own neglect.

*488The power to reform an instrument is broad in the sense of being an extraordinary power, which, like that of cancellation, ought not to be exercised except in a clear case.

Delivery “ alongside ” a wharf or lighter generally means that the delivery is made by a discharge “at the end of the ship’s tackle ” on the wharf or lighter, but this general rule may be governed by the terms of an express contract regulating the discharge.

The custom or usages of trade may be employed to explain words or phrases of doubtful signification or which may be understood in different senses, but not to contradict the express terms of a contract nor those implied terms which are necessarily inconsistent with the custom or usage.

It is a court’s duty to construe the entire contract without excluding any of its terms, if possible, and with reference to all and every of its provisions.

Where the contract guaranteed a certain depth of water at a wharf and the question arose as to whether if there was a greater depth at a particular time the ship should have been taken to the wharf instead of discharging “ in the stream,” it is incumbent on the complaining party to show the depth to be in excess of the guaranteed depth, and if the depth is affected by tides he must show the tidal condition at the particular time.

The rule that a condition or status once shown to exist is presumed to continue in the absence of proof to the contrary presupposes that the fact relied upon has the quality of being continuous. It is not, therefore, applicable to mere tidal conditions which are variable.

Where the duty of discharging a ship’s cargo was upon the defendant, who used the owner’s appliances, including an engine, with the owner’s knowledge and consent, and the engine broke down in the reasonable use thereof it will be considered, upon the question of demurrage caused by delay incident to the breaking down of the engine, that the relation of the parties as to said engine was that of bailor and bailee, and in such case the bailor and owner impliedly represented that the engine is reasonably suited to the contemplated use.

Where a plaintiff seeks to recover back port charges levied against his vessel by customs authorities of the Philippines upon the theory alleged by him that the vessel was exempt under the provisions of section 15 of the act of March 3, 1905, 33 Stats., 928, he must show that the vessel belonged to or was employed in the service of the United States; that is, that she was subject to the control of the United States and not to the control of the other party.

*489Where the general owner retains the possession, command, and navigation of the vessel and contracts to carry a cargo of freight for the voyage, the charter party is a contract of affreightment, sounding in covenant.

The decision of the court below is reversed in part and affirmed in part.

Mr. Justice Holmes

delivered the opinion of the Supreme Court April 3,1916.