#### MILBURN KNAPP v. THE UNITED STATES.

[No. 33071.

Decided December 3, 1917.]

*On the Proofs.*

*Contract; permit; abandonments*— Contract between plaintiff and the Commissioner of Indian Affairs for certain lumber in the Klamath Indian Reservation. Plaintiff requested permission to remove certain rocks and bowlders from the Williamson River, which was granted, but thereafter revoked. Thereafter further revocable permit was granted plaintiff to improve said river to facilitate the driving of logs; thereafter said permit was revoked by the Secretary of the Interior because such use of the river was held to be injurious 1 to the fish therein. Plaintiff abandoned work and never *19performed contract and sues for failure of the United States to comply witli the contract, claiming damages.

*Contract, extent of.*— There being nothing in the contract referring to the use of the river, the revocable permit granted thereafter for said use was not part of the contract nor could it affect the terms of the written instrument.

*The Reporter's*statement of the case:

*Mr. Homer Guerry*for the plaintiff.

If the language of a written contract is equivocal, or if the contract is silent as to something to be done in connection with the subject matter, a court may ignore the language and receive parol evidence explaining the subject matter, the conditions, the surrounding circumstances, the relation of the parties, and the inducing causes which led them to make the agreement, so that it may be placed as near as possible in the situation of the parties at the time of the contract and be the better enabled to interpret the agreement as the parties understood it. *Merriam*v. *United States,*107 U. S., 437; *JNash*v. *Towne,*5 Wall., 689; *Barreda*v. *Silsbee,*21 How., 146; *Brawley*v. *United States,*96 U. S., 168; *Bradley*v. *Washington,*13 Pet., 89; *Chandler*v. *Thompson,*30 Fed., 38.

If doubt exists as to the meaning of a contract, or as to any part of it, so that it may be susceptible to more than one interpretation, parol evidence of the negotiations between the parties, and of their conversations and acts about the time of the execution of the writing, is admissible, not for the purpose of contradicting what the parties reduced to writing, but to enable the court to understand what they meant by the language expressed in the contract. Parol testimony in such cases and in cases of ambiguities may be admitted to explain the surrounding circumstances and conditions, and also to enable the court to see the minds of the contracting parties and to read the contract in the sense it was written. *The Barnstable,*84 Fed., 895; *Brawley*v. *United States, supra; Moulding*v. *Prussing,*70 Ill., 151; *Chicago Great Westerri*v. *Northern Pacific,*42 C. C. A., 25; *Newton*v. *Wooley,*105 Fed., 546; *Rhodes*v. *Cleveland,*17 Fed., 426. The department knew, in advance of the con*20tract, that claimant intended to use the river and not only permitted him afterwards to use it, but also to improve the same so as to facilitate logging therein.

The construction which the parties have by their acts placed upon any indefinite,or ambiguous stipulation or term of the contract is entitled to great, if not controlling weight, in determining its meaning. *Edward Hines*v. Alley, 43 U. S. App., 169; *Topliff*v. *Topliff,*122 U. S., 121; *District of Columbia*v. *Gatlaher,*124 U. S., 505.

The principle *expressio unius est exclusio alterius,*like other rules of construction, is only useful for the purpose of arriving at the intent of the parties, and should not be applied if not in harmony with such intent. *New Albany*v. *McCormieh,*71 Am. Dec., 337. This principle has no application to the case at bar because the contract in question did not affirmatively provide for the use of any specified highway for the transportation of logs which might have excluded the use of another. As the Government wrote the contract in case of doubt it must be construed against it and in favor of the claimant. *Dougless*v. *Lewis,*131 U. S., 75; *Charles River Bridge*v. *Warren Bridge,*11 Pet., 420; *Jerome*v. *TIop-Icins,*2 Mich., 97; *Orient*v. *Wright,*1 Wall., 486.

Besides the expressed terms of a contract the law will imply certain other terms as being inherent in the nature of the transaction and as having been intended by the parties unless the language of the contract expressly excludes such implication; for instance it has been held that the granting of the right to construct an aqueduct from a spring to certain buildings carried with it the right to use the water to be conveyed and the court said:

“ Every grant of a right or privilege carries with it, by necessary implication, everything necessary to its enjoyment which the grantor has it in his power to grant. *Btanwood*v. *Kimball,*13 Met. (Mass.), 526.

On the same principle parties are supposed to contract with reference to existing law and existing conditions and the obligations thereby imposed are regarded as a part of the contract whether written or unwritten. *Green*v. *Biddle,*8 Wheat., 92; *Bronson*v. Kinzie1 How., 319.

*21A written agreement complete in itself does not preclude proof of a parol collateral agreement concerning matter on which the written contract is silent, provided no attempt is made to contradict the writing. *Lafltte*v. *Shawcross,*12 Fed., 519; *Union Stock Yards*v. *Western*Land, 18 U. S. App., 438.

Any parol agreement preliminary to the main contract In writing may be proven, though it relates to the subject matter, provided it does not interfere with the terms of the written contract. *Weaver*v. Fletcher, 27 Ark., 510; *Badger*v. Jones, 12 Pick. (Mass.), 371.

The contract expressly gave the claimant the right to cut and remove the logs and was silent as to the method and way of egress. Certainly parol evidence was proper to show the meaning of the implied grant. *Drake*v. Goree, 22 Ala., 409; *Penn. Tobacco*v. *Leman,*109 Ga., 428.

It is well settled that if the entire intendment of a contract is not reduced to writing the rest may be proven by parol evidence. *Brown*v. Grove, 42 U. S. App., 508; *Wick-ham*v. Blight, 29 Fed. cases No. 17611.

If a writing, read in the light of attendant facts and circumstances, does not contain all necessary stipulations between the parties with reference to the subject matter, parol evidence is always admissible to show what the rest of the agreement was. *Poconoket,*28 U. S. App., 600; *Harman*v. *Harman,*34 U. S. App., 316; *Lafltte*v. *Shawcross,*12 Fed., 519.

The rule that a written agreement is presumed to contain the whole contract has no application to an instrument which by its nature does not purport to state the entire agreement in respect to the whole subject matter, but is merely adapted to effect the sale of the property at a certain price and under certain regulations. *De St. Aubin*v. *Field,*27 Colo., 414; *Alvord*v. *Smith,*5 Pick. (Mass.) 232.

In *United States*v. *Behan,*110 U. S., 338, it was held that where a party was prevented by the Government from carrying out his contract he may elect to sue for damages and is entitled to recover for breach of contract and the *“*first and most obvious damage to be shown is, the amount which he has been induced to expend on the faith of the *22contract, including a fair allowance for his own time and services. If he chooses to go further and claim for the loss of anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed.”

In said case it was also held that the particular form of petition ought not to preclude the claimant from recovering what was fairly shown by the evidence to be the damage sustained by him, and in *0lark*v. *United,*States, 95 U. S., 589, it was decided that the forms of pleading in the Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due him upon the facts stated in his petition, although due in a different aspect from that in which his demand is conceived.

Whenever one party to a contract prevents the other from going on with it the other party may treat the contract as broken, abandon it, and recover his damages, the profits he would have received through full performance. *Anvil Min. Go.*v. Humble, 153 U. S., 540; *'Williams*v. Bank, 2 Pet., 96; *Lovell*v. *St. Louis,*111 U. S., 264; *Warren*v. *Stoddard,*105 U. S., 224; *United States*v. Peek, 102 U. S., 64; *Chicago*v. Tilley, 103 U. S., 146.

Indians do not hold any fee in the land within Indian reservations. The fee is in the United States. The timber on such land while standing is a part of the realty and can only be sold as the land could be. It can not be sold by the Indians and unless sold by the United States upon being cut becomes the absolute property of the United States. *United States*v. *Cook,*19 Wall., 591; *Johnson*v. *MTntosh,*8 Wheat., 543; *Spalding*v. Chandler, 160 U. S., 402; *Clark*v. Smith, 13 Pet., 195; *Jackson*v. Hudson, 3 Johns., 375; *Marsh*v. Brooks, 8 How., 223; *Mann*v. *Wilson,*23 Plow., 457; *Godfrey*v. Beardsley, 2 McLean, 412; *Minter*v. *Crom-melin,*18 Plow., 87; *Beecher*v. Weatherby, 95 U. S., 517; *Langford*v. *United States*12 C. Cis., 338; *Worcester*v. Georgia, 6 Pet., 515; *Cherokee Nation*v. Georgia, 5 Pet., 1.

*Mr. George M. Anderson,*with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

*23Hay, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

This is a suit brought on a contract entered into between the Commissioner of Indian Affairs and the plaintiff. The plaintiff alleges that the United States failed to comply with the contract, and he claims damages in the sum of $74,000. The plaintiff requested that certain timber in the Klamath Indian Reservation, Oreg., be advertised for sale. In accordance with his request sealed bids were invited in the local newspapers in October, 1912. On November 30, 1912, the plaintiff made the highest bid, $3.51 per thousand feet, and his bid was accepted on December 18, 1912. The contract was signed on January 14, 1913, by the plaintiff, and was approved by the Acting Commissioner of Indian Affairs on January 24, 1913.

On May 9, 1913, the plaintiff was notified that he might proceed to the cutting of the timber. He then requested permission to take out certain rocks and bowlders from the Williamson River, which was granted on May 26, 1913. This permit was revoked on June 8, 1913. On July 8, 1913, the plaintiff was granted permission to improve the aforesaid river to facilitate the driving of logs; this permit was revocable at the discretion of the Secretary of the Interior. The Secretary on November 12 revoked his permit to use the river for driving logs upon the ground that such use of the river would be injurious to the fish in the river.

The plaintiff complains that he has been greatly damaged by this action of the Secretary of the Interior. He also claims that he has a right to use the Williamson River for driving logs, because he says that it was understood before the contract was entered into that he should have the right to so use the river. There is no evidence that any such right was conceded to the plaintiff by anyone having authority in the premises. It is true that the plaintiff made investigation before he signed the contract as to the feasibility of using the river for the purpose of logging, and talked with the superintendent of the Indian school on the reservation as to what had been done in the past about the use of the river. He also avowed his intention to use the river in his logging operations, but all of this was before he signed the contract. *24Wben he did sign the contract there was nothing in it referring in the remotest degree to the use of the river.' If the plaintiff regarded its use as being of such vital importance to him, it is strange he failed to insist that the contract should be so drawn as to permit him to use the river. The contract was complete on January 24, 1913, when it was approved by the Commissioner of Indian Affairs. It was not until nearly four months after that time that the plaintiff applied for permission to move certain obstructions from the river. It is true he was given permission to use the river for driving logs on July 8,1913, with the stipulation that this permission might be revoked by the Secretary of the Interior at his discretion. The Secretary exercised his discretion, and for good and sufficient reasons revoked the permit on November 12, 1913. It can not be said that this permit was any part of the contract. It was given long after the contract was entered into. It was a permission in the nature of a gratuity, and attached to it was an express provision that it could be revoked at will.

There is no evidence in this case which would tend to show that the parties to the contract intended the plaintiff to have the right to use the Williamson River for logging purposes. Certainly the court can not write into the contract new provisions so changing it as to defeat the plain terms of the contract. Looking at this contract in the light of all of the evidence which has been taken in the case, it can not be said that it does not contain all necessary stipulations between the parties with reference to the subject matter of the contract. If the contract does contain all necessary stipulations between the parties, parol evidence is not admissible to show what the contract means.

The Supreme Court of the United States says:

> “Previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the subject matter of a contract and the sense in which the parties may have used particular terms, but not to alter or modify the plain language which they have.used.” *Brawley*v. *United*States, 96 U. S., 168, 173.

The plaintiff failed to perform the contract. The only things which will excuse the nonperformance of a contract *25are the act of God, the law, or the other party. *Dermott*v. Jones, 2 Wall., 1; *The*Harriman, 9 Wall., 161, 172; *Railroad Company*v. *Smith,*21 Wall., 255; and, as especially applicable to this case, *Jacksonville Railway*v. Hooper, 160 U. S., 514-527, where the impossibility relied on arose subsequent to the making of the contract. Nothing was done by the defendants which prevented the plaintiff from performing his contract. He failed to perform it, and can not now be heard to claim damages, occasioned by his own fault or negligence.

It is ordered by the court that the petition in this cause be, and the same is, dismissed, and judgment is rendered in favor of the United States against the claimant for the cost of printing the record in this cause in the sum of $177.59, to be collected by the clerk as provided by law.

Downey, Judge, BaRney, Judge, Booth, *Judge,*and Campbell, *Chief Justice,*concur.