#### Charles G. Scott *v.*The United States.

*On the Proofs.*

*The claimant agrees to furnish all transportation the United States may require from IAttle Booh to Fort Smith, and to and from all points between. “For these services” the defendants agree to pay a certain compensation. The claimant insists that he is to carry all the freight of the defendants passing up the river; hut the defendants ship supplies from St. Tonis direct to Fort Smith, and refuse to reship hy the claimant’s boats at Tittle Boclc.*

I. Military depots and posts are the termini -which define and constitute military transportation routes. Transportation contracts are made for such routes; hence, places not within a specified route are not within a contract for that route.

H. Where a contractor agrees *“to furnish all transportation the United States may require”*from a specified military depot to a specified military x>ost, *“and, to and from all points between,”*his contract must he construed to include only supplies passing exclusively on his route, and not to extend to supplies carried hy other contractors from a point without to a point within.

*Messrs. Ohipman, UPosmerés Go.*for claimants:

In tbis case there is but one question before the court, and that a mixed question of law and fact. It is not disputed that the contract out of which the claim arises was legally binding upon the United States, nor is it denied that the contractor was ready and willing, during the whole period covered by the agreement, to execute his part of it, and did execute it, except when prevented by the action of the government. The only possible suggestion that can be made to the court in extenuation of the interference with the contractor by the officers of the government-is, that the agreement included only such passengers and height, between the points indicated in the instrument, as the proper agents of the United States might direct the contractor to carry. The claimant always maintained, and now maintains here, that the contract includes all the troops and supplies which the United States might have to be transported over said route. *

*242The contract was executed on the 13th of February, 1866, was to go into effect on the 20th of that month, and was to remain in force until the 31st of December, 1866. During the period between the last two dates Mr. Scott was to furnish “ all the transportation the United States may require” between Little Bock, Arkansas, and Fort Smith, Arkansas, and to and from all intermediate points, when the same was to be furnished by river. Obviously the whole point in controversy is, what was the intention of the parties when they used the expression “ all the transportation the United States may require;” and this resolves itself into the interrogatory, what was meant by the word “require”?

The word “ require ” has two well-known and about equally common significations. It is sometimes used in the sense of “order,” or “compel;” sometimes in the sense of “need,” or “want.”

1. If the term “require” was used in the sense of “order,” or “ compel,” the government was not bound to give the contractor a single pound of its freight to carry. He might, at great expense, prepare to fulfil his agreement, and then be told that the government had concluded not to “order” or “compel” him to do any of its transportation.

2. The supposition that the word “require” was used in the sense of “order” or “compel” involves another absurdity. If such had been the intention of the parties, the expression would naturally have been *all the transportation the United States may require of*him.- The omission of this or some equivalent qualification of the language used, makes the contractor agree to furnish all the transportation the United States may require of anybody. The fault can only be corrected by the substitution of the other meaning of the word “ require.” The expression then becomes *all the transportation the United States may need.*

3. The expression, the meaning of which is in question, occurs in another part of the contract, where its signification is very obvious; thus, “In case the said party of the second part fails to furnish the transportation required by government, the quartermaster may furnish the same at the expense of the contractor.” It is impossible to give this sentence,' the meaning sought to be put upon it by the government without doing violence to the language used. Strike out the word “require,” and insert “order,” or “compel,” and it is at once seen *243that tbe senseis not complete; but if “needed” or “wanted” be inserted tbe sense is strikingly perfect.

4. We urge, generally, tbat tbe court must interpret tbe contract to preserve its mutuality, if possible, and tbat to do tbis tbe construction we bave given it must be maintained.

But we are not confined to an examination of tbe instrument itself in endeavoring to ascertain wbat was tbe intention of tbe parties when they used tbe expression in question.

Where a word or expression in a written contract is susceptible of several interpretations, parol evidence may be given to show in wbicb sense it was used. *(Bradley*v. *Washington, Alexandria and Georgetoion Packet Company,*13 Pet., 89; 12 Wheat., 515; 7 Pet., 113; 10 Id., 482; 1 How., 169; *Peishv. Dickson,*1 Mason, 11; 1 Greenleaf Ev., 287,288; *Gray*v. *Sarper,*1 Story 0. C’t, 574; 3 Starkie, 1021; 1 Nott and McCord, 45; *Robertson*v. *French,*4 East., 130; 21 Wend., 651; 9 Barb., 630; 1 Wend., 541; 12 Pick., 557; 10 N. Y.; 6 Edd., 207; 1 Phillips’s Ev., 563; 3 Kent Comm., 260, note C.)

Acts and admissions of tbe party to a deed, subsequently to its execution, are legitimate evidence to show wbat they then admitted to be tbe meaning of certain terms in tbe deed, in order to ascertain tbe meaning of those terms, if they be ambig*uous.*— (Goodyear v. *Gary,*4. Bl. O. C., 271.)

And in all cases cotemporaneous writings between tbe same parties may be given in evidence to show wbat was tbe intention of tbe parties. *(Bradley*v. *Washington, Alexandria, and Georgetoion Packet Company,*13 Pet., 89; *Rutland and Burlington Railroad Company*v. *Crocker,*29 Vt., 540; 12 Wheat., 515; 7 Pet., 113; 1 How., 169; 17 Pet., 161; 10 Id., 482; 1 Green-leaf Ev., 283; 2 Conn., 302; 5 Pick., 395.)

Tbe rule thus authoritatively laid down with tbe principles established in tbe other cases cited, admits not only tbe printed advertisement and proposals wbicb immediately preceded tbe agreement, together with tbe letter of Colonel Noble, dated Little Bock, March 9, 1866, 'addressed to Captain Churchill, A. Q. M., at Fort Smith, (see page 23, Ev.,) but also tbe testimony of Fulton, Neal, and Page.

In tbe advertisement it is announced by Colonel Noble tbat “ contractors will be required to furnish all tbe transportation required by tbe quartermaster’s department * * * * during tbe time called for in tbe contract.” An examination of tbis *244language will show still more clearly, if possible, the absurdity of interpreting the word “required” in the contract in the sense of “ordered” or “compelled.” The term “required” occurs twice in the above sentence. Substitute for it in both cases the word “ ordered,” and the sentence will read, *contractors will be ordered to furnish all the transportation ordered by the quartermaster’’s department.*This is hardly intelligible. What was the real meaning ? Plainly, that contractors would be *required*(compelled) to furnish all the transportation required (needed) by the quartermaster’s department. The term “required” is here used in each of its two ordinary acceptations, and the sentence is unintelligible unless interpreted as indicated by the words in parentheses.

*The Assistant Attorney General*for the defendants:

On the 13th of February, 1866, Henry T. Noble, colonel and assistant quartermaster, assumed to enter into a contract with the claimant, by which the latter agreed “ to furnish all the transportation the United States may require from Little Pock, Arkansas, to Fort Smith, Arkansas,” and to and from intermediate points when to be furnished by *river;*said contract to exist from the 20th February to the 31st December, 1866. At various times, in April, May, June, and July, 1866, the government had supplies, &e., transported from St. Louis to Fort Smith, and in October, 1866, transportation was procured from parties other than the claimant for certain officers, men, supplies, &c., from Little Rock to Fort Gibson, in the Cherokee nation.

The shipments from St. Louis to Fort Smith, and from Little, Rock to Fort Gibson, passed up that portion of the Arkansas River upon which the claimant carried freight under his contract ; hence he claims that he had a right to carry this freight, and sues for the price under his contract for doing so.

I.' Henry T. Noble had no authority to make this contract. *(Act of July*4,1864,13 *Stat.*L., *p.*394.)

In the first section of this act it is provided that the fourth division in the office of the Quartermaster General “ shall have charge of the purchase, charter, hire, maintenance, and procurement of *all*transportation for the army, and its supplies by land and upon the western rivers.” That the authority thus *245conferred was intended to be exclusive is clearly indicated, not only by tbe particular language used, but by the general scope of the act. The intention was to provide the means at headquarters for all the necessary movements, supplies, and equipments of the army; and it was only in cases of emergency that any exception was allowed to the general working of the machinery provided by the act. Oolbnel Noble having no authority of law to make such a contract, it cannot, of course, be binding on the government according to his terms.

II. Supposing the contract to be legal, it did not, by its terms, give the claimant any right to carry the freight for which he claims compensation in his petition, la contracting -for transportation from Little Eock to Fort Smith, the government did not give up its right to contract for transportation from St. Louis to Fort Smith, nor from Little Eock to Fort Gibson.

The utmost that Scott could reasonably claim under his contract was the right to furnish all the transportation required by the government from Little Eock to Fort Smith, and to and from intermediate points. This is all his contract calls for.

■ The government had freight at St. Louis to be taken to Fort Smith, and it had freight and passengers at Little Eock to be taken to Fort Gibson, and it procured the necessary transportation, as it had the right to do, without reference to the claimant.

Losing-, J.,

delivered the opinion of the court:

The petitioner claims damages against the United States for breach of contract. The court find the facts to be

1. That, on the 12th January, 1866, Colonel Henry T. Noble, Chief Quartermaster of the Department of Arkansas, advertised for proposals for the transportation of troops and military supplies during the year 1866, on the route from Little Eock to Fort Smith, Arkansas. The petitioner made proposals, which were accepted.

2. On the 13th day of February, 1866, a contract was made, in writing, between Colonel Noble on the part of the United States, of the first part, and the petitioner of the second part, as follows:

> “This contract, made and entered into this 13th day of February, A. D. 1866, at the city of Little Eock, in the State of Ar*246kansas, between Colonel Henry T. Noble, assistant quartermaster United States volunteers, of tbe first parí, and Charles G-. Scott, of tbe city of Little Eock, and State of Arkansas, of tbe second part—

> “ Witnesseth, that tbe said party of tbe second part agrees to furnish all transportation tbe United States' may require from Little Eock, Arkansas, to Fort Smith, Arkansas, and to and from all points between Little Eock, Arkansas, and Fort Smith, Arkansas, when tbe same is to be furnished by river; tbe boats used in such transportation must be such as shall be safe and satisfactory to tbe Chief Quartermaster of tbe department of Arkansas; they shall be owned and officered by good loyal citizens ; furnished with proper facilities for cooking rations for troops, and feeding horses and cattle; said boats are to run subject to the risk of the owners.

> “ It is agreed that the contracting parties shall give precedence and prompt dispatch to transportation for the United States, and in no case to carry private freight to the exclusion of that belonging to the government.

> “In case the said parties of the second part fail to furnish, the' transportation required by government, the quartermaster may furnish the same at the expense of the said parties of the second part, and deduct from any vouchers to be given for services under this contract all amounts paid in excess of rates hereby established.

> “For these services Colonel Henry T. Noble, assistant quartermaster, agrees, on behalf of the United States, to pay, or cause to be paid, to the said parties of the second part, compensation at the following rates:

> “ *From Little Bode to Fort Smith, Arlccmsas, or return.*

> “For commissioned officers. $12 00 each.

> Enlisted men and eiuployés. 7 50 “

> Horses. 12 00 “

> Mules. 10 00 “

> Wagons. 15 00 “

> Hay (baled) per hundred pounds. 1 95

> All other pound freight, per 100 lbs... 1 47£

> Way-freight to be transported at proportionate rates.

> “This contract to go into effect on the20th day of February, and to remain in force until the 31st day of December, A. D. *2471866. Payment to be made, in snob funds as may be furnished for this purpose by the United States, monthly.

> “It is made an express condition of this contract that no member of Congress shall be admitted to any share or part herein, or to any benefit to arise herefrom.

> “ In witness whereof, said parties have signed this contract in quintuplícate, this 13th day of February, 1866.

> “Witnesses:

> “ Chas. V. Tenney. “ Henby T. Noble,

> “ *Colonel ancl AssH Quartermaster TI. S. V.*

> “ Thomas Habbis. “ Chables G. Soott.”

The petitioner procured and manned and fitted the steamboats necessary for the performance of said contract, and kept them in serviceable condition during the continuance of the contract, and duly performed the transportation required of him by the United States.

In the year 1866, and between the 25th of April and the 31st of October, military supplies and troops were shipped by the United States at St.-Louis, to be transported thence to Fort Smith and Fort Gibson; and on the way to their • destination the vessels having- the supplies and troops on board touched at Little Book, but did not discharge there. ■

• While the vessels were at Little Bock, the petitioner, in written communications to Colonel Noble, claimed the transportation to Fort Smith of the supplies and troops from St. Louis, under his contract, and had vessels ready and fit for their transportation; but they were not delivered to him.

Had the petitioner transported the said supplies under his contract, the freight therefor would have amounted to the sum of $17,605 66.

And on these facts the petitioner alleges that the refusal by the United States to deliver to him the said supplies and troops at Little Bock, to be transported by him to Fort Smith and Fort Gibson under his contract, was a breach thereof, and he claims as damages therefor the said sum of $17,605 66.

We hold, as a conclusion of law, that the transpiorfcation from St. Louis to Fort Gibson and Fort Smith was not within the route for which the claimant contracted.

The transportation of the United States is from depots to military posts, and these make the termini which define and *248constitute transportation routes, and transportation contracts are for snob routes; so that places not within a specified route are not within a contract for that route.

The supplies and troops in this case were shipped at St. Louis for Fort Gibson and Fort Smith, and thus for a different transportation than that for which the claimant contracted. The United States were not bound to carry the supplies and troops into Little Rock, and if for any other purpose then boats went in there, they were not bound to unload the supplies and troops there, and thus incur delay and expense which the entire contract from St. Louis to Fort Smith would have saved. There maybe many intermediate transportation routes between New Orleans and Fort Smith, together covering the length of the Mississippi and Arkansas rivers. But if supplies and troops are to be sent from New Orleans to Fort Smith, a contract for that entire transportation would not interfere with a contract for each of the intermediate routes contained in that whole distance. It may be that the claimant was entitled to all the transportation the United States had from Little Rock to Fort Smith, but he was not entitled to all the transportation from other places than Little Rock to Fort Smith.

Judgment for defendants.