#### EDWARD F. GOLTRA v. THE UNITED STATES

[No. C-1003]

*On the Proofs*

*Contract; reformation; mutual understanding of terms.*— Where a Government contractor, in advance of performance, has in writing confirmed the terms of a verbal contract as they are understood by the Government, he is not entitled to have the contract reformed for the purpose of changing the terms so confirmed.

*Same; transportation 6y liarge at railroad rates; carload and less-than-carload.*— Where there is an agreement to transport cement by barge at railroad rates, and there is sufiieient cement to have called for the use of 60 or 70 railroad cars, the rates payable are those carried in railroad tariffs on carload lots and not those on less-than-earload.

*The Reporter’s*statement of the case:

*Mr. Frank Dmis, jr.,*for the plaintiff. *Mr. William D. Earns*and *Palmer, Davis <& Scott*were on the briefs.

*Mr. Lotds R. Mehlinger,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant. *Mr. Perry W. Howard*was on the brief.

*148Decided June 6, 1927.

Motion for new trial overruled January 23, 1928.

The court made special -findings of fact, as follows:

I. The plaintiff, Edward F. Goltra, is a resident of St. Louis, Mo., doing business under the name of Goltra Barge Line, and is owner of the claim sued on, has made no assignment or transfer of any interest therein, and has always borne true allegiance to the United States.

The plaintiff during the time herein referred to was the lessee and operator of certain towboats and barges on the Mississippi River and its tributaries.

II. The Engineer officer of the United States Army in charge of the office at St. Louis informed the plaintiff that the Government had at Hannibal, Missouri, 25,000 barrels of cement which it desired transported to certain dams under construction in the Ohio River, and that there was urgent emergency for the immediate transportation thereof. The plaintiff and the United States on or about August 10, 1922, entered into a verbal contract with reference to said transportation. The terms of this verbal agreement are set out in the following letter dated August 15, 1922 :

Edward F. Goltra,

*LaSalle Bldg^ St. Louis, Mo.*

Sir: This confirms arrangements made with you by Major Ware, of this office, to transport on barges from Hannibal, Missouri, to Dams Nos. 36 and 38, Ohio River, located, respectively, near Cincinnati, Ohio, and Rising Sun, Indiana, 25,000 barrels of cement at a charge 20 per cent less than the railroad freight rate to Coney, Ky., and Aurora, Indiana.

It is understood that this office will arrange for the furnishing of paulins for covering the cement and that there will be no charge other than the prices stated above.

It was further agreed by the U. S. engineer office at St. Louis that it would arrange for a return tow for you of 6,000 tons of coal from Caseyville, Ky., to St. Louis, Mo.

This office will do everything possible to- keep a channel open for four-feet draft barges over the stretch of river to be traversed in order that the above towing may be done.

By direction of the district engineer:

Albert M. Baker,

*Chief of Supply.*

*149III. The plaintiff at the time he entered into this contract with the United States was engaged at Caseyville, Kentucky, in taking on cargo of coal for transportation to Crystal City, Illinois. The plaintiff finally got away from Caseyville with his coal tow and delivered the same at Crystal City on the eighth of September, 1922, and immediately broke ground for Hannibal, Missouri, with five barges. Plaintiff stopped at East St. Louis to take on fuel, and there received the following telegram dated September 9, 1922:

“ Disappointed that your barges are not yet at Hannibal. When will they get there and what has caused delay ? Wire definitely what can be expected and whether we can assist in any way.

“ JohNstoN, Engineers.”

The same date, September 9, the St. Louis engineer’s office stated to plaintiff that the Cincinnati office was urging that he proceed as fast as possible, as the cement situation at the dams building near Cincinnati was desperate. Late in the evening of September 9 plaintiff was advised by Mr. Mitchell, the assistant district engineer in charge at St. Louis, that word had been received that the Government boat *Ottawa,*which had preceded plaintiff’s boat to Hannibal in order to assist in getting cement, was having difficulty in getting by a point known as Eagle Island, above the mouth-of the Illinois Liver, but that he would have more definite information from the engineer in charge of that particular section of the river the next morning.

*The officer in charge of loading the cement at Hannibal was directed by the U. S. District Engineer at Cincinnati to send the capta,in of the Government towboat *Ottawa*(no pilot being available) from Hannibal to bring the plaintiff’s towboat *Illinois*and her barges from St. Louis to Hannibal. The *Illinois*and her barges, piloted by Captain Dippel of the Ottawa, departed from St. Louis on September 24 and arrived at Hannibal on September 28, 1922. The *Ottawa*had to wait at Hann,ibal until Captain Dippel returned with the *Illinois*and her barges.

IY. About September 22, plaintiff received a request from Colonel Johnston, in charge-of the Cincinnati office, to meet him at Paducah. This plaintiff did and was informed that *150owing to the condition of the Ohio R,iver the defendant wanted the barges loaded to only 3% feet draft, and to make the delivery of cement at Caseyville, Ky., if the channel was in condition so to do, otherwise at Paducah. The freight rate between Hannibal and Paducah and Hannibal and Caseyville was the same.

The plaintiff and Colonel Johnston came to a verbal agreement upon the subject, confirmed by a letter from the plaintiff to Col. E. N. Johnston, dated September 23, 1922, as follows:

“ Referring to verbal agreement entered into with you yesterday at Paducah, beg to say :

“ 1. We will transport the three thousand or more tons of cement which you have purchased from the Atlas Cement people from Hannibal, Missouri, to Caseyville, Kentucky, in barges loading to *3y2*feet only, at the railroad tariff rate, Hannibal to Caseyville.

*“*2. In the event the dredging outfits do not get the rjver from Paducah to Caseyville in such condition as will enable us to proceed to Caseyville, we will make delivery at Padu-cah, the rate being- the railroad tariff to that point.

“ 3. You to furnish, at your expense, tarpaulins, etc., necessary for full protection of the cement.

“ 4. Terms: Cash upon delivery of cement at Caseyville or Paducah, as the case may be.

■ “ We are now proceeding to Hannibal and hope that the cement people w,ill get us loaded so as to get away from there by a week from to-morrow.

“ Thanking you for your order, we remain

“ Very respectfully yours,

“ Goltra Barge LiNe.”-

Y. When the *Ottawa*with her barges got away at Hannibal the plaintiff steamed into position to take on the cement and found that instead of 25,000 barrels there was only 15,600 to be taken on,- that when he learned of this he demanded that 25,000 barrels be furnished him, but this was never done. The defendant had ordered from the cement company 25,000 barrels of cement, but the company had failed or refused to deliver more than the 15,600 barrels. When plaintiff found that there were only 15,600 barrels for him to take on he endeavored, but without success, to get some other commodities to-fill up the tow, but the only extra cargo gotten was the extra tarpaulins and dunnage *151material left over after protecting the amount of cement furnished. Sufficient tarpaulins and dunnage were furnished to have protected 25,000 barrels of cement, and this extra dunnage was delivered bach to the defendant at St. Louis.

Before arriving at the mouth of the Illinois River plaintiff, September 27, received from the defendant the following telegram:

EdwaRd F. Goltra,

*St. Louis, Mo.*

Owing to river conditions in Ohio do not load cement barges over 3 feet.

JOHNSTON.

And he accordingly arranged for additional barges to lighten the tow up to only 3 feet draft; and when he got to Alton, or near there, he got instructions from defendant not to try to go to Caseyville and to arrange to transfer the cargo to railroad cars at East St. Louis, Ill., if he could get the equipment, and he arranged, with the assistance of the district engineer’s office at St. Louis, so to do. And on October 2, 1922, he received from the defendant the following telegram:

“I can not too strongly impress upon you the fact that barges should not be loaded over 3 feet.

“ JOHNSTON.”

October 14, 1922, plaintiff delivered the barges to the Government’s unloading dock at East St. Louis.

"VT. At the time the transportation service was performed by the plaintiff the railroad tariff rate on the cement between Hannibal, Mo., and Paducah, Ky., was the same as the rate between Hannibal and Caseyville, Ky., and the tariff rate on cement in less-than-carload lots between Hannibal and Paducah or Caseyville was $8.70 per ton or *43y2*cents per hundred pounds, and the rate on cement in carload lots between the same places was *15y2*cents per hundred pounds. The cost of transporting 5,000 tons of cement from Hannibal to Paducah or Caseyville at less-than-carload rate of $8.70 per ton would be $43,500 and the cost of transporting the same quantity between the same points at carload rate *152of 1514 cents per hundred pounds would be $15,500. The weight of 15,600 barrels of cement was 3,120 tons. The cost of transporting 3,120 tons of cement from Hannibal to Caseyville or Paducah at less-than-carload rate of $8.70 per ton would be $27,144, and the cost for1 transporting the same between said points at the carload rate of 15% cents per hundred pounds would be $9,672.

Plaintiff submitted to the United States District Engineer at Cincinnati three bills for towing said cement, as follows: Bill dated October 13,1922, 5,000 tons @ $8.70, $43,500, dun-nage $1,572.88, total $45,072.88; bill dated October 14, 1922, “ transporting 5 barges cement, Hannibal, Missouri, to East St. Louis, 3,120 tons at $6.00, $18,720.00, dunnage $1,572.88, total $20,292.88 and bill dated October 18, 1922, “services for towing September 10th to October 14th, inch, 34 days @ $1,303.37, $44,314.59, dunnage $1,572.88, total $45,887.46.” The said bills were referred by the United States Engineer Office to the Chief of Engineers, Washington, D. C., to be transmitted to the General Accounting Office for settlement.

November 16, 1922, the War Department Division of the General Accounting Office allowed plaintiff on its bill for $45,072.88 the sum of $7,488 for transporting 3,120 tons cement at 120 per cwt., plus dunnage of bill of $1,572.88, which it is admitted is not in dispute, or a total of $9,060.88. On plaintiff’s request for review of said settlement the General Accounting Office, on December 9, 1922, found that plaintiff was entitled to an additional allowance of $2,184.00, or a total allowance of $11,244.88. The said allowances of $9,060.88 and $2,184.00 were paid to plaintiff by Treasury Warrants Nos. 13376 and 13377, dated December 9, 1922, respectively.

The shipment of the said 3,120 tons of cement was'of a tonnage equivalent to the capacity of more than 70 railroad cars, and the amount of money that has been paid to plaintiff for towing said 3,120 tons of cement from Hannibal to East St. Louis is the amount of money that would have been due for towing the same quantity of cement at the full carload rates from Hannibal to Paducah or Caseyville.

The court decided that plaintiff was not entitled to recover.

*153Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover the sum of $33,828, which is the difference between the less-than-carload rate of $0,435 per hundred pounds and the carload rate of $0,155 per hundred pounds for the transportation of 5,000 tons of cement from Hannibal, Missouri, to Caseyville or Paducah, Kentucky.

The plaintiff was paid $0,155 per hundred pounds for transporting 3,120 tons of cement from Hannibal to Casey-ville or Paducah.

The plaintiff entered into two contracts with the United States dated August 15 and September 23, 1922. These contracts -were verbal, but confirmed by letters dated, respectively, August 15 and September 23, 1922. The first letter reads as follows:

> Edward F. Goltra,

> *LaSalle*Bldg., *St.*Louis, *Mo.*

> Sir : This confirms arrangements made with you by Major Ware of this office to transport on barges from Hannibal, Missouri, to Dams Nos. 36 and 38, Ohio River, located, respectively, near Cincinnati, Ohio, and Rising Sun, Indiana, 25,000 barrels of cement at a charge 20 per cent less than the railroad freight rate to Coney, Ky., and Aurora, Indiana.

> It is understood that this office will arrange for the furnishing of tarpaulins for covering the cement and that there will be no charge other than the prices stated above.

> It was further agreed by the U. S. engineer office at St. Louis that it would arrange for a return tow for you of 6,000 tons of coal from Caseyville, Ky., to St. Louis, Mo.

> This office will do everything possible to keep a channel open for four-feet draft barges over the stretch of river to be traversed in order that the above towing may be done.

> By direction of the district engineer:

> Albert M. Baker,

> *Chief of Supply.*

After this letter was written the plaintiff and the United States entered into another verbal contract, which the plaintiff confirmed by a letter dated September 23, 1922, which reads as follows:

> “Referring to verbal agreement entered into with you yesterday at Paducah, beg to say :

> “ 1. We will transport the three thousand or more tons of cement which you have purchased from the Atlas Cement *154people from Hannibal, Missouri, to Caseyville, Kentucky, in barges loading to 3% feet only, at the railroad tariff rate, Hannibal to Caseyville..

> “ 2. In the event the dredging outfits do not get the river from Paducah to Caseyville in such condition as will enable us to proceed ,to Caseyville, we will make delivery at Pa-ducah, the rate being the railroad tariff to that point.

> “ 3. You to furnish, at your expense, tarpaulins, etc., necessary for full protection of the cement.

> “ 4. Terms: Cash upon delivery of cement at Caseyville or Paducah, as1 the case may be.

> “ We are now proceeding to Hannibal and hope that the cement people will get us loaded so as to get away from there by a week from to-morrow.

> “ Thanking you for your order, we remain

> “ Yery respectfully yours,

> “ Goltra Barge LiNe.”

It will thus be seen that the second contract took the place of and abrogated the first contract. The difference between the two is that the rate to be paid for fhe transportation is changed from 20 per cent less than the railroad freight rate to the full railroad tariff rate, and the quantity of cement is changed from 25,000 barrels (5,000. tons) to three thousand or more tons.

The plaintiff insists that he is entitled to receive compensation for the transportation of 5,000 tons of cement, notwithstanding the fact that he only transported 3,120 tons. He contends that while the contract calls for the transportation of “three thousand or more tons,” yet it really meant 5,000 tons, and that the words “ three thousand or more tons ” written in the letter was an inadvertence on his part, and this notwithstanding the fact that he was the author of the letter interpreting the verbal contract. He says that it was the intent and meaning of the verbal contract that 5,000 tons should be transported, and that the United States meant that 5,000 tons should be inserted in the contract, and that being so, that he is entitled to the compensation for the transportation of the 5,000 tons. The plaintiff alleges that there has been a mutual mistake of fact which will authorize the court to reform the contract so that it will' express the true meaning of the parties. *155*Snellenburg Clothing Company*v. *United States,*60 C. Cls. 592, is cited in support of the contention of the plaintiff. That case is a very different one from the case at bar. The facts in this do not show that both parties understood that the quantity of cement written into the contract at the time it was made was not the quantity which was to be transported. There is here no mutual mistake of fact; no fraud is charged, and the court can not reform a contract which the plaintiff himself interpreted. The court must conclude that the quantity “ three thousand tons or more ” must have been a part of the verbal contract, or how else could the plaintiff in interpreting that contract have hit upon this quantity, especially as he insists that 5,000 tons was always ip the minds of both parties. We are of opinion that the plaintiff can be paid only for the transportation of the quantity of cement set out in the contract.

The plaintiff while it transported 3,120 tons of cement from Hannibal to East St. Louis, was paid *15y2*cents per hundred pounds from Hannibal to Paducah or Caseyville, the places mentioned in the contract. This was the carload rate between those places. The plaintiff, however, contends that he is entitled to be paid the less-than-carload rate of *43y2*cents per hundred pounds. The contract provides : “ The rate being the railroad tariff.” The contract is therefore silent on whether the rate was the carload rate or the less-than-carload rate. In interpreting the meaning of the contract we must resort to common sense and the custom of shippers in agreeing upon rates. Here was a shipment which if it had been made over a railroad would have called for the use of not less than 60 or TO cars. It is hardly possible that any person making a contract for the shipment of this amount of freight would have agreed to pay 431/2 cents per one hundred pounds when he could have obtained the same service for *15y2*cents per one hundred pounds. The amount which the plaintiff has been paid for the transportation of the cement was the railroad tariff between the places mentioned in the contract, and he is not entitled to receive more than the carload rate.

*156The petition of the plaintiff must be dismissed. It is so ordered.

Moss, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.

Gkaham, Judge, took no part in the decision of this case.