
    John L. Merriam v. The United States.
    
      On the Proofs.
    
    
      A contract binds the claimant to simply at the military station at Bismarclc “600,000 pounds, more or less, of oats, at $2.23^ per 100 pounds, or sucli other quantity, more or less, as may "be required from time to time for tlio wants of said station between the 1st July, 1877, and the 31st December, 1877, in. such quantities and at snoli times as the receiving officer may require.” He delivers and is paid for ihe 600,000 pounds specifically named: in the contract. But he is not required by the receiving officer to supply more, though he is ready and unlling to do so; and the quartermaster who made the contract hugs oats of other parties for the wants of ihe station. The claimant insists that he was entitled to supply them, and brings his action for the profits which he might have made.
    
    I.A contract which hincls the contractor to supply at a military station “600,000 pounds, more or less, of oats, or such other quantity, more or lessj as may he required from time to time for ihe wants of said station between the 1st July and the 31sf December, in such quantities and at such times as the receiving officer may require," does not entitle him to furnish all the oats which may he needed at the station; nor, after he has supplied the specified quantity of 600,000 pounds, does it preclude the defendants from buying from other parties.
    II.The word “or" in a contract will not be construed to mean “and" where it connects propositions reasonable in the alternative.
    III. Where a contract is partly in print and partly in writing, the written portion will be deemed the part more carefully considered by the parties when they made the contract.
    IV. When the terms of a contract are ambiguous, 1he parties may adof)t such a construction as they expressly or by tacit concurrence agree upon; and after one of them has incurred expense or otherwise acted on the faith of it, the other cannot set up a new interpretation.
    
      The Beporters’ statement of the case:
    The following are the facts as found by the court:
    I. The chief quartermaster of the Military Department of Dakota published an advertisement, the parts of which and of the circular therein referred to which may be material in this case are as follows:
    “Chief Quartermaster’s Office,
    
      St. Paul, Minn., March 1,1877.
    “ Sealed proposals, in triplicate, subject to the usual conditions, will be received at this office, and at the offices of the quartermasters at the following-named posts, and at Sioux City, Iowa, until 12 o’clock noon on the 2Gth day of April, 1877, at which time and place they will be opened in the presence of bidders, for furnishing and delivery of wood, coal, grain, hay, and straw,-required during the fiscai year commencing July 1,1877, and ending June 30, 1878, at the following posts and stations, viz:
    “Forts Abercrombie, Abraham Lincoln, Buford, Pembina, BatuMI, Bice, Seward, Stevenson, Sully, Sisseton, and Totten, and Gamp Hancock, and military stations at Cheyenne, Lower Brulé, and Standing Book agencies, D. T., at Fort Snelling, Minn., at Forts Benton, Ellis, and Shaw, and Camp Baker, M. T., and also at posts at or near month of Tongue Biver, and at posts on or near Big Horn Biver, M. T.
    “ Separate bids should be made for each post and for each class of supplies. A copy of this advertisement should be attached to each bid. Bids for any portion of the specified supi>lies will be received, and preference given to articles of domestic production.
    *******
    “ The government reserves the right to reject any or all bids. In bidding for grain, bidders will state the rate per 100 pounds and not per bushel.
    “ Blank j>roposals and printed circulars stating the kind and estimated quantities required ateachpost,andgivingfullinstruc-tions as to the manner of bidding, conditions to be observed by bidders, and terms of contract and payment, will be furnished on application to this office or to the quartermasters at the various posts and stations named.
    “BEHJ. C. CAED,
    “ Chief Quartermaster
    
    
      General instructions and circular' of information for bidders.
    
    “ 1. All bids should be made in triplicate, upon printed forms, to be obtained at this office.
    ***** * *
    “7. The right is reserved on the part of the government to reject any or all bids; also to disregard the bid of qny failing bidder or contractor, known as such to the Quartermaster’s Department.
    “ 8. The bidder must furnish satisfactory evidence of his ability to furnish the materials or perform the work for which he bids.
    «g * * * * * #
    ‘‘10. * * * * * *
    “ The following are the estimated quantities of supplies that will be required at each post, but the government reserves the right to increase or diminish the same at any time during the continuance of the contract, and to require deliveries to be made at .such times and in such quantities as the public service may demand.
    
      “Fort, AbraJham Lincoln, D. T.— * * * 2,404,000 pounds oats. * * *
    
      “Fort Buford, I). T.— * * * 256,000 pounds oats.
    
      
      “Cheyenne Agency, D. T.— * * * 131,000 pounds oats. # * *
    
      11 Camp JHancock, D. T.— * * * 5,400 pounds oats. * * #
    
      “Lower BruU Agency, JD. T.— * * * 34,300 pounds oats. * * *
    
      “Fort Rcvndall, JD. T.— * * * 233,000 pounds oats. # * *
    
      “Fort JRioe, JD. T.— * * * 1,000,000 pounds oats. % * *
    
      u8tcunding Rode Agency, D. T.— * * * 255,000 pounds outs ^ ^
    
      “Fort Stevenson, I). T.— * * * 96,000 pounds oats. * * *
    
      “Fort Sully, JD. T.— * * * 50,000 pounds oats. * *
    “Oats. — To be of good merchantable quality, free from dirt or other foreign matter, and to be delivered at Forts Shaw and Ellis and Camp Baker, M. T., in bulk, for the quantity required at those posts, at the rate of 32 pounds to the bushel, and at all other named places in new burlap sacks, each sack to contain no greater quantity than 128 pounds.
    *******
    “ Proposals are invited for the furnishing and delivery at the respective posts and stations of the supplies called for, except as to the grain for Forts Abraham Lincoln, Buford, 'Randall, Bice, Stevenson, and Sully, Camp Hancock, and the military stations of Cheyenne, Lower Brulé, and Standing Bock Agencies, the proposals for which will be made for the delivery of the grain either at Sioux City, Yankton, Bismarck, or Fort Abraham Lincoln. Proposals will be received for the delivery of grain required at the posts on Tongue Biver and Big Horn Biver either at those posts or at Fort Ellis, Sioux City, Yankton, or Bismarck.”
    II. The following proposals were made in accordance with said advertisement:
    “April 23d, 1877.
    “ To Gen’l B. O. Caed,
    
      “Quartermaster, U. S. A., Saint Paul, JRfinn.:
    
    “ Sir. : Agreeably to the advertisement inviting proposals for oats, dated March 1,1877, a copy of which is hereunto annexed, and subject to the conditions thereof and in accordance with the requirements of your advertisement, the undersigned hereby propose to furnish four million pounds of oats, delivered at Bismarck, D. T., for two -Jth (2-j)-cents per pound, and pledge myself to enter into a ivritten contract with the United States, with good and approved security, within seven days after being notifled that this bid has been accepted.
    “Bespectfully, &c.,
    “WILLIAM HALL.”
    
      “April 26,1877.
    “To Gen. B. C. Card,
    
      “Chief Q. M., St. Paul:
    
    “Sir : Agreeably to tbe advertisement inviting proposals for oats, &c., dated March 1st, 1877, a copy of which is hereunto annexed, and subject to the conditions thereof and in accordance with the requirements of your advertisement, we, the undersigned, hereby propose to furnish, at Bismarck, D. T., two hundred thousand bushels oats (321b to the bushel), in burlap sacks, of the following rates, viz:
    50,000 bushels at seventy-one & ‡ cents (71-J) per bushel.
    50,000 “ “ seventy-three cents (73) “ “
    50,000 “ “ seventy-four cents (74) “ “
    50,000 “ “ seventy-six cents (76) “ “
    and pledge myself to enter into a written contract with the United States, with good and approved security, at once,days after being notified that this bid has been accepted.
    “ The oats to be equal in quality to Chicago No. 2 oats, as established by the Chicago board of grain inspectors, & now in force, for the crop of 1876. Delivery to commence at once, and all be delivered by June 30, ’77, if required.
    “ Bespectfully, &c.,
    “JOHN L. MERBIAM.”
    The chief quartermaster notified said bidders of the acceptance of their bids by letters, as follows:
    “ St. Paul, MinN., May 18,1877.
    “ Mr. Jko. L. Merriam,
    
      “Saint Paul, Minn.:
    
    “ Sir : You are respectfully informed that a contract has been awarded to you for furnishing and delivering at Bismarck, D. T., 1,000,000 pounds of oats, at $2.23 per 100 lbs.
    * * * * # # #
    “The papers in the case of the contract will be sent to you for execution so soon as they can be prepared.
    “Yery respectfully, your obedient servant,
    “BENJ. O. CARD,
    
      “JBv. Brig. General, Chief Quartermaster.”
    
    “St. Paul, Minn., June 27,1877.
    “Mr. Wm. Hall,
    “ Care P. S. Kelley, Saint Paul, Minn.:
    
    “ Sir : An award for furnishing and delivering at Bismarck, D. T., of 2,620,000 pounds of oats, at $2.25 per 100 lbs., under your bid of the 23d April, 187-7, is hereby' made.
    ****** *
    “Please acknowledge the receipt of.this letter.
    “Yery respectfully, your obedient servant,
    “BENJ. C. CARD,
    
      uBt. Brig. General, Chief Quartermaster.”
    
    
      “ St. Paul, Minn., June 27, 1877.
    “Mr. Jno. L. Merriam,
    “ Saint Paul, Minn.:
    
    “ Sir : A further award for the delivery by you at Bismarck, D. T., of 600,000 pounds of oats, at $2.23^ per'100 lbs., is hereby made.
    ######*
    “Yery respectfully, your obedient servant,
    “BENJ. C. CARD,
    
      uBt. Brig. General, Chief Quartermaster?
    
    III. On the 29th of June, 1877, the following contract, upon which this action is brought, and set forth in full in the petition, was duly entered into by the parties thereto, and approved by the general in command of the department. It was made on a printed blank, furnished by defendants’ officers, but in addition to the printed matter, the words here printed in italics and in brackets were written therein :
    “ This agreement, made and entered into this twenty-ninth day of June, one thousand eight hundred and seventy-seven, by and between Major Benjamin C. Card, quartermaster, United States Army, chief quartermaster of the Department of Dakota, for and on behalf of the United States, party of the first part, and John L. Merriam, of Saint Paul, county of Ramsey, and State of Minnesota, party of the second part, for himself, his heirs, executors, administrators, and assigns, witnesseth:
    “That the said parties have covenanted and agreed, and by these presents do covenant and agree, to and with each other, as follows:
    “Article 1. That the said John L. Merriam, his heirs, assigns, administrators, and executors shall supply, or cause to be supplied and delivered, to the quartermaster’s department at the military station of [Bismarck, I). T., six hundred thousand founds, more or- less, of oats, at two dollars and twenty-three and seven-sixteenths cents ($2.23-2¡.) per one hundred pounds, the oats to he of good merchantable quality, free from dirt or other foreign matter, and to be delivered in good, new burlap sacks, each sack to contain no greater quantity than 128 pounds], or such other quantity, more or less, as may be required from time to time for the wants of said station, between the first day of July, 1877, and the thirty-first day of December, 1877, in srich quantities and at such times as the receiving officer may require: Provided that this contract is approved by the commanding generals of the Department of Dakota and of the Military Division of the Missouri; otherwise not until'such approval is obtained.
    “Article II. That the said o'áts, when delivered, shall be subject to inspection on behalf of the United States, as provided by General Orders, No. 87, dated Headquarters Department of Dakota, October 3.1st, 1873.
    “Article III. That the said party of the second part shall be entitled to military protection in tlie execution of this contract or agreement, whenever from the hostilities of the Indians it may be deemed necessary by the post commander, whoso duty it shall be to furnish protection to the extent of his power; this stipulation to give no foundation for any claim against the government for damage from Indians, or for any detriment arising from their depredations or hostilities.
    “Article IY. That'it is expressly agreed and understood that this contract is made under General Orders, No. 49, War Department, Headquarters of the Army, dated May 15th, 1877, and under authority of the following law: Section 3732, Bevised Statutes: *No contract or purchase on behalf of the United States shall be made unless the same is authorized by law, or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, or transportation,- which, however, shall not exceed the necessities of the current year. No payment will be possible under the contract until and unless appropriation is made by Congress for the support of the Army during the fiscal year beginning 1st July, 1877, to which alone this contract pertains.
    “Article V. That in case of failure of the said party of the second part to comply with the stipulations of this contract, according to the true intent and meaning thereof, then the party of the first part shall have the power to supply the deficiency by purchase, or otherwise, and the said party of the second part shall pay the difference in cost, and any money due said party of the second part may be used and applied to such payment.
    “Article YI. That it is expressly understood by the party of the second part that in conformity to the requirements of section 3737 of the Bevised Statutes, neither this contract nor any interest therein shall be transferred to any other i>arty or parties, and that any such transfer shall cause the annulment of the contract so far as the United States are concerned; all rights of action, however, for any breach of this contract by the contracting parties being reserved to the United States.
    “Article VII. That it is expressly agreed and stipulated between the parties to this contract that, upon mutual agreement, it may be changed, altered, modified, or abrogated, in whole or in part; but no such change, alteration, modification, or abrogation shall entitle the said John L. Merriam to increased rates of compensation, over the rates herein specified.
    “Article YIII. That it is further expressly agreed and understood that no member of Congress, officer, agent, or em-ployé of the government shall be admitted to any share or part in this agreement, or derive any benefit to arise therefrom.
    
      “Artiole IX. That this agreement is made subject to tbe approval of tbe commanding generals of tbe Department of Dakota and of tbe Military Division of tbe Missouri.
    “In witness whereof tbe undersigned bave hereunto subscribed their names and affixed their seals tbe day and date above written.
    “BENJ. C. CARD, [seal.] .
    
      “Quartermaster, U. 8. A.
    
    “JNO. L. MERRIAM.” [seal.]
    IY. In further execution of tbe acceptance of said bids and in accordance with said first letter of acceptance of May 18, 1877, tbe claimant entered into another contract with said quartermaster, bearing date May 15, 1877, for tbe delivery of 1,000,000 pounds of oats, which said contract was otherwise identical in terms with that set forth in the next preceding finding, except that the words “or such other quantity, more or less, as may he required from time to time for the wants of said station between the 1st day of July, 1877, and the 31 st day of December, 1877, in such quantities and at such times as the receiving officer may require,” printed in Article I, following the written matter, were erased.
    Two other contracts, dated June 29,1877, were made between said quartermaster and said Hall, in accordance with his said bid, one for the delivery of 665,000 pounds of oats and the other for the delivery of 1,955,000 pounds, each at $2.25 per one hundred pounds j and in other respects the two contracts were identical in form'with those of the claimant, the one first above mentioned having the same printed words erased which were erased from said claimant’s contract of May 15,1877, as stated in this finding, and the other containing them.
    Y. There were delivered at Bismarck, as under the two contracts of said Hall, by parties other than the claimant, 3,116,616 pounds of oats between July 1, 1877, and December 31,1877.
    YI. The claimant, after the execution of his said contracts respectively, commenced delivering oats thereunder, and by July 12, 1877, had delivered more than 1,600,000 pounds specifically mentioned in the two contracts, the excess having been received by the acting assistant quartermaster (Chubb) at Bismarck, by mistake, and he has been paid in full for all that he has delivered.
    Subsequently, he offered to deliver more oats, as set forth in the following telegrams, but they were refused, as therein appears:
    “ Bismakck, D. T., 17 JuIaj, 1877.
    “To Che. Qm., St. P., Minn.:
    
    “ Jno. L. Merrian has delivered one hundred & sixty thousand (160,000) pounds oats more than stated in your letter of June twenty-seventh (27th). Five (5) car-loads here now. Shall re-ceivals continue?
    “CHUBB.”
    “St. Paul, M'inn., July 17,1877.
    “Lieut. Chubb, Bismarolc JD. T.:
    
    “ Beceive no more oats from Merrian at present.
    “LEE.
    “ In charge Offices
    
    “Bismakck, D. T., Aug. 10,1877.
    “To Chiee Quaktekmaster, St. Paul:
    
    “ John L. Merrian has four (4) cars oats here, which he offers at his contract rates. Shall I take them ?
    “CHUBB.”
    “ St. Paul, Minn., August 11th, 1877.
    “Lieut. Chubb, .
    “ Quartermaster, Bismarclc, B. T.:
    
    “We do not want the additional oats.
    “CAED.
    “ Ohief Quartermaster.”
    YII. Neither the receiving officer nor any other officer of the defendants required the claimant to supply for the wants of said station any other quantity of oats than that specifically mentioned in the contract sued on, nor made any requisition upon him therefor; and the claimant did not ask to be informed whether or not any other quantity would be required, and although he repeatedly offered the several car loads referred to in the next preceding finding to the acting assistant quartermaster, and requested him to take them in order to clear up all he had at Bismarck, and get the railroad company’s cars unloaded, he never demanded it as a right under his said contract.
    VIII. The claimant had the means to deliver oats within the time mentioned in said contract to the full extend of the quantity delivered under said Hall’s contract by other. parties, in addition to that which was received from him, had he been required, notified, and permitted so to dó, and was ready and ivilling to make such delivery, although, be gave the defendants’ officers no notice to that effect, and made no other offers than those set forth in the sixth and seventh findings.
    IX. The claimant suffered some loss by reason of the non-receipt by the defendants of the several car-loads of oats mentioned in the sixth finding and his being obliged to sell the same to other parties; and some loss of profits which he would have made if he had delivered at the contract price oats to the extent of the quantity received by the defendants under said Hall’s contracts in addition to the quality which he did deliver and for which he was paid.
    
      Mr. John B. Sanborn for the claimant:
    Under the provisions of Article I of the contract in controversy, the claimant was bound to furnish all the oats required for the wants of the station at Bismarck, Dak., between the first day of July and the thirty-first day of December, A. D. 1S77; and the United States were bound by said contract to receive all oats required for any purpose at that station between the dates specified from claimant. (Brawley v. United States, II C. Gls. R., 522; .Dumont x. United States, 98 U. S., 142.)
    
      Mr. Assistant Attorney-General Simons for the defendants:
    The party in whose favor an alternative stipulation is made has the right to elect which branch of it shall be adopted, and that performance thereof satisfies the contract. (United States v. Thompson, 1 Gall., 388; Dumont v. United States, 98 U. S., 142.)
    These cases show that the courts have refused to modify the effect of a stipulation in this form, even when it was manifest that the real intention was to secure performance of a particular alternative therein; but if the real intention were of importance, examination of the original contract will show that it was drawn upon a printed blank form intended to apply generally to the large class of contracts for supplies at military stations, and that the clause relied on by claimant is of the printed part, while that stipulating for delivery of a specified quantity and fixing the price and other details is written in, and preference should, therefore, be given to it as expressing more immediately the real intent of the parties. (2 Pars, on Oont.. 5th ed,, 516.
    
      Under tbe circumstances of this case, it seems unnecessary to take tbe position that tbe clause relied on by claimant is a purely unilateral term of tbe agreement, raising no corresponding obligation on tbe part of defendants, though authorities would not be wanting to support it. (Hudson Canal Go. v. Penn. Goal Go., 8 Wall., 270; Bulldeyv. United, States, 19 Wall., 39; Lobenstein v. United States, 91 U. S., 324; Piper v. United States, 12 C. Ols. E., 219.)
   Eichardson, J.,

delivered tbe opinion of tbe court:

Tbe only question of law involved in this case arises upon tbe construction to be given to tbe first article of tbe contract set forth in tbe xietition, tbe exact language of which is that tbe claimant agrees to “supply, or cause to be supplied and delivered, at tbe quartermaster’s department at tbe military station at Bismandc, Bale., six hundred thousand pounds, more or less, of oats, at two dollars and twenty-three and seven-sivteenths cents ($2.23y'6) per one hundred pounds, the oa.ts to be of pood merchantable quality, free from dirt or other foreign matter, and to be delivered in good, neic burlap sacies, each sack to contain no greater quantity than 128 pounds, or such other quantity, more or less, as may be required from time to time for tbe wants of said station between tbe 1st day of July, 1.877, and the 31st day of December, 1877, in such quantities and at such times as tbe receiving officer may require,” the words constituting tbe first part of tbe agreement, here printed in italics, being written in a printed blank used by the parties in drawing tbe contract, and those of tbe second being in print.

Tbe claimant contends that be was bound to supply, and tbe defendants were bound to receive from him, not only tbe 6.)i),000 pounds specifically mentioned, which they did receive and for which be has been paid, but all tbe oats that tin wants of tbe Bismarck military station required, if more than that quantity, between July 1 and December 31,1877, however great tbe same might be, without, reference to tbe quantity specifically named, and without being required so to do by tbe receiving officer or any other officer of tbe defendants; and it appearing by the facts proved that tbe defendants received, during that period, from other parties, under other contracts, 3,1.18,616 pounds, which be was ready and willing to deliver, be claims that they have violated their obligation, and that he is entitled to recover damages on account thereof to the amount of $21,855.

In our opinion, the obligation which the defendants incurred, assuming it to be coextensive with that of the claimant, according to the uniform decisions of this court and the Supreme Court in the construction of contracts unilateral in form (Speed’s Case, 8 Wall., 77, and 7 C. Cls. R., 93; Caldwells Case, 8 id., 335; Brawley's Case, 11 id., 522, affirmed on appeal 96 U. S., 168, and 13 id., 521), was to receive and pay for either 600,000 pounds or such other quantity as should be required of him by the defendants’ officers for the wants of the military station, and that the doing of either ivas a performance of their contract and relieved them from further liability. That is the natural and grammatical meaning and the legal effect of the words of the contract, which cannot be interpreted as the claimant would have it without doing violence to the language adopted by the parties and to well-settled rules of law. The word “or” is sometimes made to signify “ and,” when it appears to be consistent with the meaning implied by the context and in order to carry out the manifest intent of the contracting parties; but such an interpretation here would be inconsistent with any intent which can reasonably be gathered from the connection in which the word is used, from the whole contract, or from the light of the surrounding circumstances, and would compel the defendants to receive not only all the oats required for the station, but 600,000 pounds in addition thereto, without any indication as to what purposes the surplus quantity could be used 'for or how it was to be disposed of.

This view is in harmony with that adopted by the Supreme Court in the recent case of Dumont et al., plffs. in error, v. The United States (98 U. S., 142), where a suit was brought upon an importer’s bond for the payment, when the amount should be determined, of duties, then unascertained, on certain imported goods, in which the importer and his sureties obliged themselves to pay $525, or the amount of duties which should be ascertained, or should within three years withdraw and export the goods, or transport them to a Pacific port. The ascertained duties proved to be $676.75. The defendants paid the $525 mentioned in the bond, and the court held that the terms of their contract were satisfied, the obligor having complied with one of the three conditions upon the performance of either of which his bond was to be discharged, and that no further amount- could be recovered thereon iu that action. Although the importer, the principal, would be liable by law for the excess of duties unpaid independently of the bond, it could not be recovered of him and his sureties under the contract sued on.

The words of the first part of the agreement having- been inserted in writing- in an otherwise printed contract, it must be inferred therefrom that they constituted the main and substantive part of the agreement, the part which was more carefully considered by the parties than that which followed in print; for, as is said in Parsons on Contracts (vol. 2, ch. 1, § 3, last paragraph) upon the authorities there cited, “It is reasonable to suppose that the intention of the parties, was. more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class.” It is, however, not necessary to determine in this case how far the quantity specifically mentioned in writing might have been varied one Avay or the other by the defendants’ officers under the alternative printed clause which follows; whether by only such a slight deviation therefrom as from the circumstances of the case or the nature of the articles to be delivered might seem to the court to be reasonable according to the rule for the construction of the words “more or less,” and the force and effect thereof when used in contracts, as laid down in Brawlei/s Case (11 O. Cls. B., 528, affirmed on appeal 96 U. S., 168, and 13 C. Cls. B., 521), or by such larger quantity, not disproportionate to that specified, which, from the whole tenor of the contract and the surrounding circumstances, might fairly be presumed to have been within the contemplation of the parties when they entered into the contract; or by any still greater quantity, however large and disproportionate to that specified, which might be required for the wants of the station, as the present claimant contends, a construction which, if adopted in this case, would extend the quantity from 600,000 pounds to 3,116,616 pounds, or more than five times that which was specifically named.

In point of fact, the quantity was not varied nor attempted to be varied in any manner authorized by the contract, but was left to stand as therein specifically written.

It must be observed that the alternative provision, in print, mates the claimant agree to supply not such other quantity, more or less, as might be required from time to time by the wants of tlie military station, but for tlie wants of the station in such quantities and at such times as the receiving officer might require. The quantity under that provision was therefore to be determined by the receiving o Hiper before it became fixed, as were the times of delivery also; and as he made no such requirement, the claimant was not bound to deliver, nor the defendants to receive, any quantity whatever, great or small, under that part of the agreement.

After the execution of the contract, in order to avoid unnecessary expense and preparation in its performance, the claimant had undoubtedly the right to be informed and to know, at reasonable and proper times, if he desired, whether or not any quantity, and if any, then to what extent, ivonld be required of him under the alternative provision; and as he sought no such information from the defendants’ officers, he must be held to liave been content with their course of proceeding, and to have understood that no greater quantity would be required of him than that which was specified in the contract. The acquiescence of both parties left that quantity unchanged and as governing the contract between them. The claimant’s own actions indicate that such was his understanding of the matter. In thirteen days after the date of his agreement he had delivered the whole 600,000 pounds and a slight quantity in excess, without requisition therefor from the officers or any request from him to learn what quantity would be required. Alore than a month after that, when lie offered to deliver five additional car-loads, and at the end of nearly another month when he. offered four carloads more, and on other occasions when lie asked the officers to receive the same and they refused, he never once claimed the right to deliver them under his contract, but rather asked that they be purchased of him at the contract price as a favor and for his convenience. If he then claimed the construction which he now urges, it was his duty to have so informed the defendants’ officers, that they might not be misled; and as he did not do so, they had a right to infer that he assented to their construction that his contract was for only 600,000 pounds, unless the receiving officer himself required a greater quantity, and he is bound thereby.

When the terms of a contract are ambiguous, the parties may adopt such a construction as they expressly or by tacit concurrence agree upon, and after one of them has acted upon that construction, incurred expense, or done other acts on the faith thereof, the other party cannot set it aside and insist upon a different interpretation inconsistent therewith. It becomes part of the contract itself, in the nature of a new agreement, and is as binding as though it were one of the original provisions.

Moreover, the construction which the claimant now urges, that the quantity was to be fixed by the wants of the military station, independently of the requirements of the receiving officer and of the quantity which -was specified in the written words, would completely nullify the first provision so carefully written into the contract by the parties, and render it wholly without force or effect from the very beginning; a result which alone shows that it cannot be the correct view, for parties are not supposed to write unmeaning and inoperative provisions in their contracts, and all their words must be allowed to have some significance if possible.

We have thus far considered the case -with reference only to the terms of the contract itself and the subsequent proceedings of the parties thereto. If we call to our aid the "light of the circumstances under which the agreement was entered into, as disclosed in -the findings of fact, we shall find that it explains some matters which otherwise cannot be well understood, and fortifies and confirms the construction which we have adopted as expressing the manifest object and intention of the contracting parties. On the 1st of March, 1877, the chief quartermaster (if the Military Department of Dakota advertised for proposals to be sent in by April 26, 1877, for the delivery of supplies for many different posts, stations, and agencies, among which were oats, estimated to be 4,764,700 pounds, necessary for ten different posts and stations, and which the bidders might offer to deliver at Bismarck, or any of three other places. The claimant made a bid in writing, offering to supply,'at Bismarck, 50,000 bushels of oats, equal to 1,600,000, at 71¿- cents per bushel, equivalent to $2.23^ per hundred .pounds; and 50,000 pounds at 73 cents per bushel, equivalent to $2.28¿- per hundred pounds; and two other lots of 50,000 pounds each at still higher prices. One Hall made a bid, offering to supply at said Bismarck also 4,000,000 pounds at $2.25 per hundred pounds. The claimant’s bid was therefore the lowest only on his first offer of 1,600,000 pounds; and Hall’s bid was lowest for the remaining estimated quantity. On tlie 18th of May following, the claimant was notified that a contract had been awarded to bim for furnishing 1,000,000 pounds at the price of $2.23^ per hundred pounds; and a written contract was thereupon entered into between the parties, dated May 15, for the delivery of that quantity. Subsequently, on the 27th of June, apparently with the design of completing the arrangements for the supplies advertised for, the claimant was notified that a further contract for the delivery of 600,000 pounds, at the same price per hundred pounds, was awarded'to him ; and it will be seen that those two quantities together made exactly the whole for which his bid was the lowest. At the same time said Hall, whose bid was the next lowest, was notified that a contract was awarded to him for furnishing 2,620,000 pounds, which was not the full quantity offered by him, but which, with the two quantities awarded to the claimant, provided very nearly for all that had been estimated for, and was apparently all that it was then supposed would be required, as, in fact, it substantially proved to be. In pursuance of these acceptances, on the 29th of June, 1877, the second contract was made with the claimant, as set forth in the petition, for the delivery of 600,000 pounds; and two other contracts with said Hall, one for the delivery of 1,955,000 pounds absolutely, and the other for 665,000 pounds, with the additional provision, as in the claimant’s second contract, “ or such other quantity, more or less, as may be required from time to time for the wants of said station, between the 1st day of July, 1877, and the 31st day of December, 1877, in such quantities and at such times as the receiving officer may require.” Thus we cannot avoid the inference, so distinctly manifest in this particular case and under these circumstances, that by the insertion of those words in each of the smaller contracts with the two successful bidders, when the whole estimated quantity required was specifically provided for, it was contemplated that they might become operative to apply to some comparatively small additional quantity, which, under some circumstances that might arise, it would be found convenient to deliver and receive — a contingency which did in fact happen in each case; or that if one contractor failed the other might be called on; and not to give each contractor the right to deliver the whole, and thus place the defendants in the position of having at the same time contracted with two separate parties each for precisely the sarnie thing, and for double the quantity required. It does not affirmatively and directly appear that the claimant knew of Hall’s bid and contract, but it is not a violent presumption to suppose that he must have known who the successful bidders were, and what was the full result of the bidding under the proposals, as only part was awarded to him ; and he certainly knew that his bid had been accepted for only 1,000,000 pounds, the exact quantity specifically named in his contracts.

Thus under every view which we are able to take of this case the claimant has no cause of action, and his petition must be dismissed.  