
    Henry C. Akin v. The United States.
    
      On the Proofs.
    
    
      Art. I of a transportation contract provides that the carrier shall furnish all the steamboat transportation which the government may require upon the MissouriBiver “ at any time from Maxell 20th to November 10t.li, but not later tlian the respective limits of the date of loading specified in Article III.” Article III provides th at ‘ no steamboat shall be required to load with stores” at Bismarclc for Goal Banlcs later than August 10; i. e., up the river. A number of other places and times are lilcewise enumei'ated in the same article. After tie 10th August, the government sends troops as passengers from Coal Banlcs to Bismarclc (i. e., cloion the river) , by another carrier.
    
    I.A contract ambiguous in terms will be construed in accordance with the business interests of both parties.'
    II.When it would ordinarily put the carrier to great risk and danger to ' run a steamboat upon a river after a designated date, a just construction of the contract will not require him to carry freight down the river merely because the words of exemption in the contract relieve him from carrying it from A to B; i. e., if taken literally up the river.
    III.Where one article of a contract refers to another merely for the purpose of obtaining dates, it will not he limited by the subjects of the latter.
    
      
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court:
    I. The following contract was duly executed by the parties thereto:
    
      “Contract for transportation-on the Missouri and Yelloiostone Rivers.
    
    “Service on the Missouri River between Yankton, D. T., and Fort Benton, M. T., to commence March 20 and terminate November 10, 1880.
    “ Service on the Missouri and Yellowstone Rivers between Yank-ton or Bismarck, D. T., and Big Horn Depot, M. T., to commence April 1 and terminate September 15, 3880.
    “Articles of agreement entered into at Saint Paul, Minnesota, this twenty-fifth (25th) day of February, eighteen hundred and eighty, between Lieutenant-Colonel Charles II. Tompkins, deputy quartermaster-general, United States Army, of the first part, and Henry O. Akin, of the county of Woodbury, State of Iowa, of the second part.
    “ This agreement witnessetb, That the said Lieutenant-Colonel Charles H. Tompkins, deputy quartermaster-general, for and in behalf of the United States of America, and the said Henry O. Akin for himself, his heirs, executors, and administrators, liave mutually agreed, and by these presents do mutually covenant and agree to and with each other, as follows, viz:
    “I. The said Henry C. Akin shall furnish all the steamboat transportation required by the United States for officers, soldiers, government employees, horse?, mules, and cattle, and public store's on the Missouri River from Yankton, Forts Randall, Hale, Sully, Bennett, Yates, Abraham Lincoln (or Bismarck), Stevenson, Buford, D. T., Cow Island and Coal Banks, M. T., to Fort Benton, M. T., and from each to any other of the above points, and from and to any qjoint on said river between Yankton, D. T., and Fort Benton, M. T., at any time from March 20, 1880, to November 10,1880, but not later than the . respective limits of date of loading specified in Article III, and shall receive at any time during the period as aforesaid, from the officers or agents of the Quartermaster’s Department at Yankton, or any point between Yankton and Fort Benton above indicated, all such-public stores as may be offered or turned over to him for transportation, in good order and condition, by sa,id officers or agents of the Quartermaster’s Department, and transport the same with dispatch, and deliver them in like good order and condition to the officer or agent of the Quartermaster’s Department designated to receive them at aforesaid or any of the aforesaid posts. Also all the steamboat transportation required by tbe United States for officers, soldiers, government ’ employees, borses, mules, and cattle, and public stores on the Missouri and Yellowstone Rivers; that is to say from Yankton or Bismarck, D. T., on the Missouri River, to Fort Keogh and Big Horn Depot, on the Yellowstone River, and between Fort Keogh to Big Horn Depot, and from and to any other points on the Yellow stone River below Big Horn Depot. All stores in either case to be delivered at their destination within the year 18S0 : Provided, That the said Henry O. Akin shall have the privilege of using wagons and teams for the*service herein provided for whenever the water is too low for steamboat transportation. A sufficient guard shall be furnished, when necessary, for the protection of stores while in transitu overland, on application in writing by the said Henry O. Akin or his agent to the comm an ding officer of the nearest military post: Provided further, That this contract shall cease and terminate on the 30th of June, 1880, unless extended by the United States under appropriations which maybe made for the service of the fiscal year commencing July 1,1880, and that it shall not be .so construed as to involve the government in any obligation for the future payment of money in excess of the appropriations for the present fiscal year. The distances in all cases are to be determined by the chief quartermaster Military Department of Dakota.
    “ II. The said Henry O. Akin shall employ for the service required by this contract such steamboats only as shall be safe and satisfactory to the shipping officer, and as shall have been approved by the United States inspector of steamboats for the district of the Missouri River and its tributaries from Yank-ton, D. T., to Fort Benton, M. T. (District No. 5). Cabin passage shall be provided for officers, one hundred and fifty (150) pounds of baggage to be allowed for each officer free of charge. Kitchen room, cooking-stoves, bunks, and all other proper accommodations shall be provided for the use of enlisted men and employees, eighty (80) pounds of baggage to be allowed for each person free of charge. Through and proper conveniences shall be provided for transporting, feeding, and watering horses, mules, and cattle, one hundred and eighty (180) pounds weight for forage being allowed for each animal free of charge.
    “ III. The said Henry C. Akin shall have a place of business or agency at Yankton, D. T., and at Bismarck, D. T., and at such other points as may be designated by the said chief quartermaster of the Department of Dakota. Written notice shall be given the said Henry C. Akin or his agent at his place of business or agency nearest the point from which troops, animals, or stores are to be transported of the number of men and animals and the quantity and kind of stores to be transported, when and where they will be delivered to him, and their destination (subject to such changes as may be made while in transitu), as follows, viz: Ten days’ notice when transportation is required at Yankton; twelve days notice when transportation is required at Fort Itandall; fourteen days’ notice when transportation is required at Fort Hale; seventeen days’ notice when transportation is required at Fort Sully or Fort Bennett; twelve days’ notice when "transportation is required at Fort Yates ; ten days’ notice when transportation is required at Fort A. Lincoln (or Bismarck); twelve days’ notice when transportation is required at Fort Stevenson; sixteen days’ notice when transportation is required at Fort Buford; twenty-five days’ notice when transportation is required at Cow Island, and twenty days’ notice when transportation is required at any point on the Yellowstone Hi ver: Provided, That such notice shall not be required when the said Henry C. Akin shall have sufficient available means of transportation at the point from which shipment is to be made; but in every such case the bill of lading shall be taken and considered sufficient notice. It is, however, understood that this agreement does not provide that boats in the service of the contractor going up or coming-down stream may be turned back in their course without the contractor’s consent.
    And it is further provided that no steamboat shall be required to load with stores consigned to the Coal Banks or Fort Benton, at Bismarck, later than the 10th of August, or at Yankton, or at points betweeen Yankton and Bismarck, later than the 1st of August; nor with stores consigned to Cow Island, at Bismarck later than the 1st of October, or atYaknton, or at points between Yankton and Bismarck later than the 20thof September; nor with stores consigned to FortBuford, at Bismarck later than 18th of November, or at Yorkton, or points between Yorkton and Bismarck, later than the 20th of October; nor with stores consigned to Big Horn Depot, at Bismarck later than the 1st of August, or at Yankton later than the 20th of July; nor with stores consigned to FortKeogh, at Bismarck later than thel5th of August, or at Yankton later than the 5th of August; and no steamboats will be required to load with stores consigned to Big Horn Depot, at Fort Keogh later than the 1st of August; butitishereby provided and agreed that the said Henry C. Akin shall be in readiness to furnish transportation from Yankton and Bismarck ou the dates above specified in this article, for such stores as may be offered or turned over to the said Henry C. Akin, for transportation to the points above indicated, without any further notice than the requisition or notice made or given on such date, or prior thereto. It is further expressly agreed that each and every steamboat in the service of the contractor shall stop and report to the officer on duty in the Quartermaster’s Department, at each and every post in the steamboat’s route, whether going up or coming down stream, in order that if desirable and practicable, additional troops and supplies may be put on board for transportation.
    
      
      “ IY. In case of failure by reason of deficiency in tlie quantity or quality of tbe means of transportation furnished, or from any other cause on the part of the said Henry C. Akin, to be in readiness to meet the demands and requirements made upon him for transportation under this agreement, after due notice shall have been given the said Henry C. Akin, or his agent, as provided in Article III, then.the officer or authorized agent of the Quartermaster’s Department in charge of transportation^ shall have power to supply the deficiency either by purchase, hire, special contract, or the use of government transportation as the said officer or agent may elect; and the said Henry C. Akin shall be charged for any expense incurred by the government in excess of the rates herein provided; such amount to be deducted from any moneys due or to become due the said Henry C. Akin.
    “ Y. The stores and supplies to be transported under this agreement shall be accompanied by bills of lading setting forth the number, kind, weight, and destination thereof, to whom consigned, and containing the usual exceptions of the dangers of navigation and fire; to be receipted by the officer or authorized agent of the Quartermaster’s Department, at the place of destination, as hereinafter provided. Officers, troops, and employees shall be furnished with transportation requests, the certificates on which shall be signed by the proper parties when the transportation shall have been furnished, ,and upon such receipts and certificates i)ayments shall be made to the said Henry C. Akin as hereinafter provided; demurrage shall also be allowed for all unusual or unnecessary detention en route caused by proper military orders, in writing, at the rate of one dollar per ton registered tonnage per twenty-four hours, not to exceed in any one case the sum of three hundred dollars per day of twenty-four hours.
    “ YI. Upon the arrival of the stores at their place of destination or delivery, the officer or agent of the Quartermaster’s Department thereat shall indorse the bill of lading in accordance with the facts, if all the stores are in good order and condition, or if deficiencies or damages, chargeable to the said Henry O. Akin, are then and there admitted by the said Henry O. Akin, or his agent; if not, then in accordance with the finding of a board of survey, as hereinafter provided, stating the quantity and condition of the stores delivered; upon vdiich indorsement payment shall be made, deducting for any articles missing, lost, destroyed, or damaged, which the board of survey may find to be properly chargeable to the said Henry O. Akin at the rates specified in Article YII of this agreement.
    “YII. In all cases where stores have been transported by the said Henry C. Akin under this agreement, and loss, damage, deficiency, or delay not then and there admitted to be chargeable to the said Henry O. Akin has occurred, a board of survey (to be applied for in writing by the said Henry O. Akin, or his agent, one member of which board shall, when practicable, and subsistence stores are involved, be an officer on duty in the Subsistence Department) shall be called without delay, upon their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, investigate the facts, report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether they were attributable to want of proper care or to neglect on the part of the said Henry C. Akin, or his agents or employees, or to causes beyond his or their control; and these proceedings, a copy of which shall be furnished the said Henry C. Akin, shall, after due approval and confirmation, be attached to the bill of lading, and shall govern the payments to be made on it. For loss of weight due to shrinkage, and for leakage of vinegar, molasses, or other liquids, the said Henry C. Akin shall not be held liable, if the packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from want of proper care or neglect on the part of the said Henry O. Akin or his agents. For loss, deficiency, or damage, attributable to the said Henry C. Akin, or his employees, the said Henry O. Akin, shall pay twice the cost of the stores lost, deficient, or damaged, at the place where they were turned over to the said ,
    and no freight whatever shall be allowed on stores lost or deficient. In case of damage', freight shall be deducted in proportion to the quantity damaged. If the amount found due for loss, deficiency, or damage, shall at any time exceed the amount of freight due on the bill of lading, the proper deductions shall be made from any amount's ‘due or which may become due the said Henry O. Akin for other services rendered uuder this agreement.
    “VIII. The government will, whenever deemed advisable, contract for forage to be delivered at Yaukton, Bismarck, and Fort Benton, or any post, station, or Indian agency between said points (on the Missouri River), and at Fort Keogh and Big Horn Depot or any intermediate points (on the Yellowstone River). It is understood that this agreement shall not be so construed as to prevent the transportation of troops or public property of any kind on any boat belonging to the United States. And the United States also reserve the right to make through shipments of troops and public property of any kind from St. Louis, Missouri, Fort Leavenworth, Kansas, and Omaha, Nebraska, to points on the Missouri River above Yank-ton, and on the Yellowstone River, and thereby use other steamboats than those in the service of the said Henry O. Akin.
    “IX. For and in consideration of the faithful perform anee of the stipulations of this agreement the said Henry C. Akin shall be paid at the office of the disbursing quartermaster at Saint Paul, Minnesota, or other designated point or points, in the funds furnished for the purpose by the United States, according to the following rates, viz:
    
      
    
    
      Table of distances on the Missouri and Yellowstone Rivers, compiled under the direction of the chief quartermaster, Department of Dakota.
    
    DISTANCE FROM YANKTON.
    
      
    
    DISTANCE FROM FORT BUFORD.
    
      
    
    Office Chief Quartermaster,
    Department of Dakota,
    
      Saint Paul, Minn., December 22, 1879.
    “X. The word ‘stores,’ wherever appearing in this agreement, •shall be understood to mean any property of the United States •pertaining to any department thereof, which may be required to be transported by the Quartermaster’s Department; also any personal property or baggage of officers, troops, and others in the military service of the United States, the transportation of which, at public expense, by the Quartermaster’s Department, is authorized by law or by regulations and orders of the "War Department.
    “XI. Neither this contract nor any interest therein shall be transferred by the said Iienry O. Akin to any other party; and any such transfer shall cause the annulment of the contract so far as the United States is concerned. All rights of action, however, to recover for any breach of this contract by the said Henry O. Akin are reserved to the United States.
    “XII. No Member or Delegate to Congress, nor any person belonging to or employed in the military service of the United States, is or shall be admitted to any share or part of this contract, or to any benefit which may arise herefrom.
    “XIII.' This contract shall not go into effect until approved by the commanding general of the Department of Dakota and of the Military Division of the Missouri.
    “In witness whereof the undersigned have hereunto placed .their hands and seals the date first hereinbefore written.
    “ Chas. H. Tompkins, [seal.]
    “ Deputy Quartermaster-General, U. S. A.
    
    “Henry C. Akin. [seal.]
    •“Witnesses:
    “W. G. Etans.
    “Bruce Maokall.
    Approved, February 26, 1880.
    “Alfred H. Terry,
    
      “Brig. Gen., Commanding Dept. .Dakota.
    
    “Official copy:
    “Chas. H. Tompkins, “Deputy Quartermaster-General, U. 8. A.”
    II. That, conformably to his obligations under said contract, Henry O. Akin furnished lines of steamboats, which were duly accepted for said service, to ply up and down the Yellowstone and Missouri Fivers, between the points on said rivers mentioned in said contract, stopping at each of said points on each up and down trip to receive freight and passengers for transportation under said contract, which lines of steamboats were made up of the following boats, namely: C. K. Peck, Nellie Peck, General Terry, Peninali, General Meade, Fontenell, Benton, Helena, Butte, F. Y. Bachelor.
    Both Coal Banks and Cow Island were paints of shipment upon the Missouri Biver for passengers and freight to and from Fort Assinaboine, Mont., the former point being about 38 miles distant and the latter about 109 miles distant. G-eorge S. Hoyt was an officer of the Quartermaster’s Department at Fort Assinaboine in 1880, whose duty it was to ship employes, soldiers, and government stores.
    But, when navigation would permit, all consignments for the fort were unloaded at Coal Banks. The cost of land-carriage from Cow Island to the fort was 93cents more per 100 pounds than from Coal Banks.
    III. On the 9th of October, General Tompkins, chief quartermaster, Saint Paul, Minn., notified Lieut. George S. Hoyt, Fort Assinaboine, by telegram dated October 9, which said Hoyt received on the 11th of October, that the Helena expected to reach Coal Banks about October 16.
    On the same day Lieutenant Hoyt sent the following telegram in reply:
    “ October 11,1880.
    “To Chief Quartermaster Dept, oe Dakota,
    
      “SaintPaul, Minn.:
    
    “Have made arrangements to have Bose Bud at Coal Banks on the eighteenth to take employés down on contract price, and she is on the way up. Contract boats ceased taking freight to Coal Banks, and I did not consider contract binding on me to give them employes to transport. Had no confidence in Helena reaching Coal Banks, and considered matters of too much importance to depend on an uncertainty. Hope this action is satisfactory.
    “Hoyt,
    
      “Post QuartermasterP
    
    IY. The Helena reached Coal Banks October 17, and as soon thereafter as the operator was in working order, which was early next morning, the following-notice wa,s sent, namely:
    “ To Lieut. Geo. 8. Hoyt,
    
      "A. A. Q. M., Assinaboine:
    
    “ The steamer Helena is now here at Coal Banks, and has come to this point specially prepared to take any government employees or freight that you may have to send down the river. We shall be ready to start down as soon as your men are on board.
    “H. C. Akin,
    “ Contractor. ”
    
      Said Lieut. Gt orge S. Hoyt refused to ship the employ és and freight upon the Helena, then fully prepared to receive and transport the same to their places of destination, to ports on the river below, without additional expense, and shipped the same on the 18th of October, on board the steamer Rosebud, a boat not in the claimant’s employ nor owned by the United States.
    The cost of this transportation at claimant’s contract prices was $1,742.27.
    V. On September 27, 1880, Lieut. George S. Hoyt notified, by telegraph, George Olendennin, agent of S. B. Ooulson, to have the steamboat Rosebud at Coal Banks about October 18, to take employés and freight down the river to Bismarck, and the same day sent to claimant’s agents the following telegram:
    “ SEPTEMBER 27, 1880.
    “To T. C. Power & Bno.:
    “On account of the uncertainty which seemed to attend the movements of the Helena and Butte on gov’t business during the last month, and the knowledge that the Meade was going to Bismarck, I did not think there would be any prospects of their coming to Goal Banks late in Oct., and have made other arrangements for getting employés down.
    “Hoyt,
    “Post Quartermaster.”
    During September and October the water in the Missouri between Cow Island and Coal Banks was very low, and the navigation between those points at that time was difficult and dangerous.
    The Rosebud was a lighter steamboat than the Helena, and was the best low-water boat on the river.
    Claimant refused to carry freight from Bismarck to Coal Banks after August 10, 1880, but carried it to Cow Island instead.
    
      Mr. Harvey Spalding for the claimant.
    
      Mr. Assistant Attorney-General Simons and Mr. R. A. OrMson for the defendants.
   Scoeield, J.,

delivered the opinion of the court:

On the 27th day of September, 1880, Lieutenant Hoyt, acting assistant quartermaster, U. S. Army, at Fort Assinaboine, Mont., engaged the steamboat Rosebud, to be at Coal Banks about October 18, to take government employés and stores, down tlie Missouri River to Bismarck. The boat came and. shipped the men and freight as agreed. For this service the government paid at contract rates $1,742.27.

On the same day, and before the Rosebud was loaded, Lieutenant'Hoyt was notified that the Helena, one of claimant’s line of steamboats, had arrived and was ready to furnish the required transportation. Claiming the exclusive right under his contract of February 25,1880, to furnish this transportation, the claimant now brings suit to recover the amount paid for the Rosebud. This involves an examination of the contract. Article 1 provides as follows:

“I. The said Henry O. Akin shall furnish all the steamboat transportation required by the United States for officers, soldiers, government employees, horses, mules, and cattle, and public stores, on the Missouri River, from Yankton, Forts Randall,, Hale, Sully, Bennett, Yates, Abraham Lincoln (or Bismarck), Stevenson, Buford, D. T., Cow Island and Coal Banks, M. T., to Fort Benton, M. T., and from each to any other of the above points, and from and to any point on said river between Yank-ton, D. T., and Fort Benton, M. T., at any time from March 20,. 1880, to November 10, 1880, but not later than the respective limits of date of loading specified in Article III, and shall receive at any time during the period as aforesaid, from the officers or agents of the Quartermaster’s Department at Yankton and Fort Benton above indicated, all such public stores as may be offered or turned over to him for transportation.”

The part of article 3 above referred to reads as follows:

“And it is further provided that no steamboat shall be required to load with stores consigned to the Coal Banks or Fort Benton, at Bismarck later than the 10th of August, or at Yank-ton or at points between Yankton and Bismarck later than the 1st of August; nor with stores consigned to Cow Island, at Bismarck later than the 1st of October, or at Yankton or at points between Yankton and Bismarck later than the 20th of September; nor with stores consigned to Fort Buford, at Bismarck later than the 1st of November, or at Yankton or points ■ between Yankton and Bismarck later than the 20th of October.”

Article 10 defines the meaning of stores as follows :

“X. The word ‘stores,’ wherever appearing in this agreement, shall be understood to mean any property of the United States pertaining to any department thereof, which may be required to be transported by the Quartermaster’s Department; also any personal property or baggage of officers, troops, anti others in tlie military service of the United States, the transportation of which, at public expense by the Quartermaster’s Department, is authorized bylaw or by regulations and orders-of the War Department.”

It will be observed that the claimant first agrees to furnish all transportation as late as November 10, but immediately qualifies his undertaking, as to time, by reference to certain-dates in article 3. He will not agree to furnish transportation “later [in the season] than the respective limits of date of loading specified” there. “The limit of date” therein specified from Bismarck to Coal Banks is August 10. The provision in article 3 is about loading “ stores.” The provision in article-1 is about furnishing transportation for both stores and men. The reference in the first article is made to obtain dates by which to limit transportation as to time, not as to subjects. The one says “stores” shall not be loaded after certain dates; the other that no transportation shall be furnished after the same-dates. This is the grammatical and legal construction of the language employed in the contract. It seems also to be in accordance with the business interests of both parties. Claimant’s, business was to carry passengers and freight. Why he would not agree to run a boat to Coa-1 Banks late in the season is easy to understand, but why, if compelled to run one, he -would reject government business of any kind, especially as there was-seldom enough, all told, to load a boat, is not so easy. It is said that carrying passengers was more profitable than carrying stores. Quite likely, but carrying both within the capacity of the boat would be still more profitable. ' That the claimant would agree to start a boat from Bismarck for Coal Banks as late as November 10, with only a few soldiers at stipulated prices on board, the government being all the time free to send its freight by rival lines, is scarcely credible. Yet that is the-construction the claimant asks üs to put ux>on his contract. That the government would agree to give claimant their most profitable business, to wit, carrying passengers, and hire other boats to take stores only, is equally incredible. By article 10, the baggage of officers and men is classed as stores. Under claimant’s construction the government would be compelled to send these officers and men in his boat, and charter another to-take their baggage. In going from Cow Island to Coal Banks late in the season (a distance of 85 miles), as stated by claimant’s witness, a boat encounters “low water, sand-banks, snags, sevfen rapids, besides the danger of being frozen in for the winter.”

It seems to have been the intention of the claimant, as derived from the contract itself and all the surrounding facts, not to be bound to start a boat, however loaded, late in the season, beset with all these dangers, to Coal Banks. In accordance with this intention, after the specified “limit of date,” he carried to Coal Banks neither stores nor men. Although it cost the government for land carriage 93-J- cents additional for every 100 pounds of freight, he landed at Cow Island all consignments to the fort.

In this way we come to the coirclusion that after August 10 the claimant was not bound to furnish transportation for men or stores from Bismarek to Coal Banks. It follows as an almost necessary corollary that he was not bound to furnish it as late as October from Coal Banks down to Bismarck. If it were otherwise, the claimant would be compelled, at the call of the government, to have a boat at Coal Banks at any time prior to November 10, to take down men and stores, however few in number or small in amount, while the government would not be required to furnish any business up. The claimant not being bound to furnish this transportation down the river, the government was at liberty to contract with other parties.

The quartermaster at Fort Assinaboine, interpreting the contract as the court interprets it, nevertheless treated the claimant with all fairness. He knew that about October 18 a large number of employés at the fort would need transportation to Bismarck. By that time navigation to Coal Banks, already very difficult and uncertain, might, except for the smallest boats, become impossible. The Helena, on her last voyage, though freighted with government stores consigned to Coal Banks, was obliged to unload at Cow Island. He had good reason to fear that a trip by that boat to Coal Banks in the middle of October would be impossible. The Rosebud, smaller in size and lighter in draft, could be counted upon with greater certainty. To get ready and make the trip up the river would ' require two or three weeks’ notice. Therefore as early as September 27 he engaged the Rosebud. On the same day, with unrequited consideration of claimant’s interest, be sent to bis agent tbe following telegram:

“Sept.- 27,1880.
“ToT. C. Power & Bro.:
“ On account of tbe uncertainty wbicb seemed to attend tbe movements of tbe Helena and'Butte on gov’t business during tbe last month, and tbe knowledge that the Meade was going to Bismarck, I did not think there would be any prospects of their coming to Coal Banks late in Oct., and have made other arrangements for getting employés down.
“ HOYT,
“Post Quartermaster.”

It was not the fault of defendants’ agent, but in disregard of bis timely notice, that a voyage possibly profitless was undertaken by tbe Helena. Nor is it tbe fault of lawyers that lawsuits grow out of a contract so inaptly worded that its uncertain meaning must be unsatisfactorily sought through construction and inference.

Tbe judgment of the court is that the claimant’s petition be dismissed.

Nott, J., did not sit at tbe hearing of this case, and took no part in tbe decision.  