
    THE DIX ISLAND GRANITE CASE.
    The Dix Island Granite Company v. The United States.
    
      On the defendants’ Demurrer.
    
    
      The facts alleged in the petition were: (1.) The contract hound the defendants to pay for stones, where the dimensions did not exceed tioenty cubic feet, sixty five cents per foot, “and one cent additional for every cubic foot of those having dimensions exceeding twenty feet.” The defendants paid the additional price for the larger class of stones recleoned cumulatively, hut began the accumulation at the twenty-first foot. (2.) Thecontraet also provided that the claimants should ereet shops, sheds, <fc., for the defendants’ stone-eutters “on the written order aud under the direction of” the Supervising Architect. Buildings were erected and used by the workmen, hut the petition does not allege phat they were built on the order or by direction of the Architect. (3.) The Secretary of the Treasury reguested that the workmen work eight hours. The claimants acceded to this, but said that the additional cost must be borne by the Government. The Secretary replied that that was a subject for the consideration of Congress.
    
    I. Whore a contract provides that the claimants shall erect shops, sheds, &c., for the defendants’ workmen “ on the written order and under the direction ' of the party of the second part,” (the Supervising Architect of the Treasury,) it is not enough in an action on the contract to allege that certain barns, boarding-houses, &c., were erected for the defendants’ workmen ” with the full knowledge and consent of the officers of the United Slates, and upon their requirement, and were necessary,” <fa.
    
    II. Where certain workmen, engaged in cutting stone for the New York post-office, were paid by the defendants, but their labor was engaged and directed by the claimants/ and the Secretary of the Treasury requested that their work be limited to eight hours a day, and the claimants complied, but said that the additional cost to themselves must be borne by the Government, and the Secretary replied that that was a subject for the consideration of Congress, the defendants did not thereby become liable for the claimants’ additional expenses.
    
      
      The Reporters’ statement of the case :
    The allegations of the petition, demurred to by the defendants, sufficiently appear in the opinion of the court.
    It will be observed that upou the first and principal question in the case, the price of stones exceeding twenty cubic feet in ■dimensions, a majority of the court were not agreed.
    
      Mr. Benjamin 1\ Butler for the claimant:
    The whole question upon this claim arises upon the construction of the clause in the contract:
    “ The party of the first part hereby covenants and agrees to pay or cause to be paid unto the said party of the second part, or their legal representatives, for-the stone so delivered by the party of the second part, in lawful money of the United States, the sum of sixty-five cents per cubic foot for all stones, when the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding twenty feet.”
    The operative words are :
    “The sum of sixty-five cents per cubic foot for all stones when the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding twenty feet.”
    The claim of the Government is, that for stone exceeding twenty cubic feet in quarried dimensions, one cent additional upon such stones is to be paid only upou the number of feet beyond twenty; i. e., twenty cubic feet are to be paid for at sixty-five cents per cubic foot, and then the remaining number of cubic feet are to be paid for at one cent additional to sixty-five cents for each cubic foot beyond the twenty. To illustrate: upon this construction, a stone of thirty cubic feet is to be paid for, twenty cubic feet at sixty-five cents per cubic foot and ten feet at seventy-five cents a cubic foot, making such a stone cost $20.50. The construction of the petitioners, which uses the plain words of the contract, requires that the stone shall be paid for at one cent additional to sixty-five cents for every cubic foot in such stones, when the quarried dimensions thereof exceed twenty feet. To illustrate : with the same thirty eubic-foot stone, each cubic foot would cost ninety-five cents, making such a stone cost $28.50.
    There are no “ surroundings” shown of this part of the contract which tend to vary or are competent to vary the words of the contract, or furnish any guide to the court in construing the contract. Un the part of the petitioners, the only circumstances which could be shown by evidence are that small stones are quite cheap, not exceeding, say, twelve cents a cubic foot; and that the price increases with great rapidity as the size increases ; and that after stones arrive at certain dimensions the prices increase at more than a geometrical ratio. But this everybody knows without evidence. The contract shows that eleven cubic feet make a ton. The contract further binds the petitioners to deliver such stones as may be required in the construction of the building, of whatever and how great size required.
    The evidence of the schedule dimensions by Stein metz (nob printed) further shows that some enormously large stones were required to be furnished by petitioners.
    Upon these undisputed facts, what is the construction of the words “ one cent additional for every .cubic foot of those (stones) having such dimensions ” — i. e., quarried dimensions— “ exceeding twenty cubic feet ? ”
    The language is plain, direct, and unequivocal. There is no ambiguity.
    An attempt to vary a contract from its plain words does not make the contract ambiguous. There is nothing that requires explanation. The petitioners only ask the execution of*the contract according to its terms. No evidence would be allowed to vary these terms. (Partridge v. The Insurance Go., 15 Wall., 573-579.)
    Evidence of how the contract was understood by one or both parties cannot be induced; or the belief of one party as to the terms of the contract, unless that belief was induced by the conduct or declarations of the other party. Of this there is no evidence. (Bailey v. The Bailroacl Go., 17 Wall., 96-105; Bank v. Kennedy, 17 Wall., 19-28; Maryland v. The Railroad, 22 Wall., 105.)
    The contract is susceptible of two interpretations. It does not seem to be in dispute that the market-house, store-house, barns, and wharf were necessary for the accommodation of the workmen, and for pressing the work in obedience to the orders shown in the exhibits. But it may be said that shops and sheds are necessary for the stone cutters to work in, and that the only interpretation of the contract was that the buildings only to accommodate the workmen while at labor were erected, and that the “&c.” would be construed only for like erections, but the Department have paid for boarding houses which were erected in the same way and under the same contingency as the market-house and store house, for the accommodation of the men while not at work. So that we claim.by the true construction of the contract the words “ &c.” mean such erections and accommodations as were necessary to take care of the men both while at work and to keep them in order that they might work.
    All the laborers were employed by the petitioners; and the petitioners certainly had a right to employ their own labor, to perform their contract at such hours and at such pay as they chose, subject, of course, to the order of the Government when they chose to make any change at their own expense; and all their laborers and workmen were employed at ten hours per day prior to June 8,1872, at which time the laborers petitioned the Secretary of the Treasury for leave to have an order that their hours of labor should be reduced to eight hours per day. After granting that petition the Secretary of the Treasury issued a request to give the mechanics and laborers employed on the works the benefit of the eight-hour law without any reduction in the rate of wages. To that the petitioners replied that, in accordance with the request, they had adopted the eight-hour law, and that it would increase the cost of the granite, which should not be borne by the petitioners.
    Having thus brought the claim we should make upon the Government if its request was acceded to, the petitioners then received the reply which is on the 25th page of the record, thanking him for complying with the request, and “noting the statement that the cost of the granite would be increased thereby, and that you (the petitioner) do not think it should be borne by you. On this question I do not desire to express my opinion, it being a subject for the consideration of Congress, and not for the Department.’’
    
      Mr. Assistant Attorney-General Simons for the defendants.
   Drake, Oh. J.,

delivered the opinion of the court:

The petition in this case sets forth three causes of action, all growing out of the same contract, and the defendants file a general demurrer to the petition. The contract as first entered into, and the supplemental one, and certain, letters relied upon, are all subjoined to the petition, so that we have before us, as we suppose, all that is necessary to enable us to decide the questions of law presented by the demurrer.

I. The first cause of action is for the recovery of $70,745.74, which the claimant avers to be due to it, over and above what has been paid to it by the Government; and the question whether the claimant is entitled to any more than was so paid it, upon the facts as set out in the petition, is the point now to be decided. If the claimant is, in our judgment, entitled to more, the demurrer must be overruled ; if not entitled to more, the demurrer must be sustained.

The claimant, by the contract, agreed with the Supervising Architect of the Treasury Department to furnish and deliver at the site of the new post-office building to be erected in the city of New York, granite from the quarries of the claimant on Dix Island, to be used in the construction of said buildiug; and the contract contained a stipulation for the payments to be made to the claimant in the following words:

“The party of the first part hereby covenants and agrees to pay or cause to be paid unto the said party of the second part, or their legal representatives, for the stone so delivered by the party of the second part, in lawful money of the United States, the sum of 65 cents per cubic foot for all stones where the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding twenty feet.”

The controversy is over the meaning of the last sixteen words of that clause, viz, “ and one cent additional for every cubic foot of those having such dimensions exceeding twenty feeV lb is remarkable that at least thre.e different interpretations can be given to those words.

The petition alleges that, under the orders of the Supervising Architect, the claimant furnished a large number of stones, each of quarried dimensions exceeding 20 feet, amounting in the aggregate to 353,728 cubic feet and 7 inches, for which the Government has, upon its construction of those words, paid a sum which is' $70,745.74 less than the claimant holds to be rightfully due. The allegation of the petition is in these words :

“And your petitioners further show that the United States claim aud pretend that said amount is not due to your petitioners because they say by the construction of said contract, as they hold, for every cubic foot in said stone exceeding in dimensions 20 cubic feet, they are only to pay under said contract to your petitioners as many cents per cubic foot beyond 65 cents as there are cubic feet i i said stone exceeding 20 cubic feet; and under said claim the United States have paid to your petitioners for said stone a sum so reckoned only, leaving the aforesaid balance of $70,745.74 now due aud owing to your petitioners according to his contract.”

The difference between the claimant and the Government can best be shown by illustration, taking a stone containing 30 cubic feet as the example.

The claimant’s idea of what should be paid for such a stone is, first, 65 cents for each of the 30 feet; aud, secondly, to add to each of the 30 feet the sum of 30 cents, to meet the contract requirement of “ 1 cent additional for every cubic foot of those having such dimensions exceeding 20 feet.” This would make each of the 30 feet cost 95 cents, and the whole $28.50.

The rule of construction by which the Government paid the claimant was, first, 65 cents for each of the 30 feet; and, secondly, to add 10 cents to each of the 30 feet, as the 1 cent additional on the excess over 20 feet, so that each.of the 30 feet would cost 75 cents, and the whole $22.50.

In the opinion of a majority of the court neither of these constructions is the true one, but that the words in question are satisfied by allowing 1 cent additional for each of the 30 cubic feet, making them each cost 66 cents, and the whole $19.80.

If this be the correct view, then the claimant has been paid on the whole 353,728 cubic feet and 7 inches at the rate of $2.70 more on every 30 cubic feet than the contract required. Of course, then, there is no ground for any claim over and above the amount the claimant has received; and therefore the claimant’s first cause of action is bad, and as to that the demurrer must prevail.

II. The second cause of action is based on the following stipulation in the supplemental contract:

“Any claim heretofore made or presented by the party of the second part for the payment of the cost of shops, sheds, &c., used for the working, dressing, and boxing of the granite, is hereby waived and withdrawn, it being understood that the contract of said party to work, dress, and box the granite implies that they were and are to provide all usual and reasonable facilities for the performance of the work at their own proper cost and expense. It is agreed, however, that if at any time the party of the first part should deem it necessary that a greater number of granite-cutters than one hundred, with a proper proportion of blacksmiths and carpenters, should be employed, temporary shops, sheds, &e., for the accommodation of the additional force, shall be erected by said party of the second part, on the written order and under the direction of the party of the first part.”

The petition alleges that the United States required the employment by the claimant of more than eight hundred granite-cutters, with all the necessary labor for working, boxing, and dressing stone, transporting and delivering the same at the wharves, and freighting the same from Dix Island, and delivering the same in New York; and that the claimant, in order to carry on the work, under the direction of the United States and under the order of the superintendent of the work appointed by the United States, built boarding-houses, sheds, store-houses, and barns; and was forced and obliged, for the purpose of freighting said stone, to build additional wharfage facilities at Dix Island, and also an additional store-house to store the lumber, steel, iron, salt, and other materials furnished by the United States, and for the protection of the same from the weather; and also a market-house or shop in which provisions might be stored and furnished to the men for their support while so employed ; and large boarding-houses in which the men could be lodged and fed; and barns for the cattle employed in hauling the stone; all of which was done with the full knowledge and consent of the officers of the United States, and upon their requirements, and were necessary for the completion of the work in the time required by the Supervising Architect, and were of great benefit and advantage to the United'States; and that all of those buildings and erections have been paid for by the defendants, except the following, which cost the sums set opposite to them, respectively:

For this amount the claimant asks judgment, and we are all of the opinion that the petition does not, in respect thereto, show a cause of action.

By the contract, whatever “ shops, sheds,” &c., might be needed “for (he accommodation of the additional force,” were required to be erected “ on the written order and under the direction of the party of the first part;” and the Supervising Architect of the Treasury Department was the party of the first part. He was the officer whom the contract designated as the one whose “written order” should authorize the erection of those structures; and, to entitle the claimant to recover on account of them, it must be averred that he ordered their erection. It does not meet the requirements of the case for the petition to say that theyAvere built “under the direction of the United States,” or “ under the order of the superintendent of the work appointed by the United States,” or “ with the full knowledge and consent of the officers of the United States, and upon their requirement;” for none of those allegations, nor all put together, necessarily include the Supervising Architect, who was the party to act. For all that appears in the petition, he may never have known that the claimaut had built any of those structures. Certainly it does not appear that he ordered their erection.

In the abseuce of au averment to that effect, the second cause of action is bad, and the demurrer to it is well taken.

III. The third cause of action is for the sum of $14,219.12, which it is averred the claimant lost by the increased cost of the work done by it under the contract, after the 10th of June, 1872, consequent upon a letter — which the petition styles au “order” — written by the Supervising Architect to the claimant on the 8th of June, 1872, as follows:

“I am instructed by the Secretary of the Treasury to request you to give the mechanics and laborers employed by you on the work for- cutting and boxing the granite for the new post-office at New York the benefits of the eight-hour law, from and after the receipt of this letter. The Department does not expect that any reduction will be made in the rates of wages on that account.”

To this letter the.claimant, on the 10th of June, answered as follows:

“ Yours of the 8th is this morning to hand, and, in accordance with your request, have telegraphed to Dix Island and to Charleston to adopt the eight-hour law, which you are aware' causes hn increase in the cost of granite, &e., which certainly should not be borne by us.”

To this the ¡Supervising Architect, on the 12th of June, replied thus:

“Yours of June 10th, notifying me that you have adopted the eight-hour rule at Dix Island and Charleston, is received, for which please accept my thanks.
“ I also note your statement that the cost of the granite will be increased thereby, and that you do not think that it should be borne by you. On this question I do not desire to express my opinion, it being a subject for the consideration of Congress, and not for the Department.”

By the contract the United States were to pay to the claimant “ the full expense and cost of working, dressing, insuring, and boxing the stone,” and the petition alleges that the granite-cutters, dressers, aud boxers of the stone were paid by the United States. They were, therefore, in fact, the employés of the Government, though their labor was engaged aud directed by the claimant; and, as such, they were subject to, and entitled to the benefit of, the Act June 25, 1868, (15 Stat. L.,. 77,) which declared “that eight hours shall constitute a.day’s work for all laborers, workmen, aud mechanics now employed, or who may be hereafter employed, by or on behalf of the Government of the United States.”

The claimant, in entering into this contract, knew, or was bound to know, of the existence of that law, and was bound to understand that it would, or at any rate might, be applied to the workmen who should be employed under the contract. That law was as much a part of the contract as if an express stipulation making it so had been therein inserted. When, therefore, the claimant was requested to give those workmen the benefit of that law, there was no violation of the contract, but,. in effect, a compliance with it. If, thereby, the cost to the claimant of fulfilling the contract was increased, that was only a necessary result of the enforcement of a law, which the claimant was well aware might be enforced, and with reference to the effect of which the contract must be held to have been made. There is, therefore, as we all think, no claim against the Government for the alleged increased cost, resulting from giving the workmen the benefit of the law; and the demurrer to the third cause of action is well taken.

The demurrer is sustained as to all the alleged causes of action.

ÍTott, J.,

dissenting:

Of most things which are bought and sold the value or prices in the direct ratio of the quantity. Thus if a sack of flour weighing fifty pounds be worth §3, one weighing one hundred pounds would be worth $10; or, if a yard of cloth be worth $2,. ten yards would be worth $20. It may be true in many cases that a large article is more valuable than a small one of the same variety, as in the case of fruit, where<a barrel of large apples is worth more than a barrel of small ones, though of the same kind; yet here the unit is the barrel and not the apple, and the difference of size in the fruit is reckoned as a difference of quality, the fact remaining always that a hundred barrels of the same kind and quality will not cost more than a hundred times the cost of one barrel, but ordiuarily less.

Of some other things, however, either because of the extraordinary rarity of the greater size, or of extraordinary difficulties in manufacturing or transporting, the value or price is cumulative. The most notable examples of these are diamonds and plate-glass. For a long time the rule for computing the value of diamonds of equal purity ran in this way:

If a diamond of I carat were worth £8, one of 2 carats would be worth £32; one of 3 carats would be worth £72; one of 20 carats would be worth £3,200.

And it is stated in The Attorney-General v. The Plate-Glass-Company, (1 Anst. R., 43,) that if a piece of plate-glass be cut in two it will, not have one-eighth of the value that it had» before.

The counsel for the claimant maintained, on the argument -of this demurrer, that the price or value of dressed bnildiug-stone is, by universal custom, of this cumulative character. If that had been alleged in the petition, and conceded by the demurrer, there could not be a doubt that the contract here, intended likewise a cumulative price. Gourts, however, may refer to learned treatises and works upon an art or trade, and accordingly I have examined a great number of works upon architecture, engineering, and building, and also the Loudon Builder’s Price-Book, without finding the slightest information on the , value or price of-building-stone. There is, indeed, an extraordinary dearth of information in auy way relating to the subject. Pacts and formulas abound as to the cost of brick, concrete, wood, and iron, but nothing which relates to stone. Learned books have been written for the use of architects and builders devoted exclusively to building-stones, dealing with their density, durability, chemical constituents, locality, and ¡geological history,'yet entirely silent on the subject of cost. Therefore if any such custom in this trade exist, it is not one known to the court, or which can be made known to the court in any way save by allegations and evidence. The claimants have not made such averments, but have been conteut to stand entirely upon the letter of the contract.

The language to be interpreted in this contract is as follows:

• “The party of the first part hereby covenants and agrees to pay the sum of sixty-five cents per cubic foot for all stoues, when the quarried dimensions do not exceed twenty cubic feet in each stone, and one cent additional for every cubic foot of those having such dimensions exceeding tweuty feet.”
The entire controversy and $70,745.74 depend upon the meaning of seven words, “ one cent additional for very cubic foot.”

Three interpretations have been ascribed to this clause :

1st. That the price intended was sixty-five cents per foot for ■stones of twenty feet or less, and for larger stoues sixty-six cents; which is the interpretation of the court.

2d. That the price intended was sixty-five cents per foot for stones of twenty feet or less, and fpr larger stones one cent additional “ for every cubic foot ” in a stone except the first itwenty; which is .the interpretation said to have been given to ■the clause by the Supervising Architect of the Treasury.

■3d. That the price intended was sixty-five cents per foot for stones of twenty feet or less, and for larger stones sixty-five cents plus one cent for every cubic foot coutained in a stone ; which is the interpretation of the claimants. .

As to the second interpretation it is manifest that it inserts a provision not to be found in the contract by excepting from the computation the first twenty feet. The words “for every cubic foot” deny any such limitation, and it is generally conceded that its arbitrary insertion by construction would be factitious and fanciful. The controversy, therefore, is reduced to the simple question whether the price of the class of larger stones was intended to be fixed or cumulative.

The first interpretation ascribes to this class of stones a fixed price, but in regard to it there are several things to be said.

' In the first place, if all that the parties intended when they entered into their agreement was to designate for two classes of stones two fixed prices, it is utterly incomprehensible that they did not say so in so many words. When they said that “ sixty-five cents” was to be the price of the one class why did they not say that sixty-six cents should be the price of the other ? If all that they meant was that for stones under twenty feet' the price should be sixty-five cents, and for stones over twenty feet, sixty-six, why did they go so far out of their way to avoid saying three such simple words as “sixty-six cents'?” If they did not intend a varying scale of cumulative prices for this class, why did they provide a fixed price for the first class and a cumulative scale for the second 7 Certainly, if the words “sixty-five cents per cubic foot and one cent additional for every foot of those having dimensions exceeding twenty feet” were used to express nothing more than “ sixty-six cents,” they furnish as ridiculous a paraphrase as can be found in English literature.

In the second place, this contract contains no limitation as to the size of the stone which the claimants were to furnish ; and, on the contrary, bound them under very stringent penalties to furnish “ all such stone as might be required in the construction” of the Hew York post-office. Apart from any knowledge of a custom of cumulative prices, ordinary intelligence suggests that a contract to furnish stone of unlimited dimensions at the trivial advance of one cent a foot over the price agreed upon for the smallest would be ruinous. The language of the contract is the thing to be interpreted, but itjs to be interpreted, according to the subject-matter of the contract. If a contract were to provide for the sale of “ a thousand barrels of flour at $5 per hundred,” would any court need extrinsic evidence to show that “hundred” meant oue hundred pounds, and not oue hundred barrels ? If a contract were to provide for the sale of “fifty firkins of butter at 30 cents each, and fifty at 25 cents each,” is there a court in the world that would say that the price was literally twenty-five or thirty cents for the whole firkin of butter! if a mere literal reading of a contract were the highest rule of construction, is it not manifest that »• grammar class of school-boys in some of our well-taught public schools would furnish the very best expouuders of contracts ¶

In the third place, the defendants here conceded as the work progressed that/ the contract intended a cumulative pricej though the parties differed as to the starting-point of computation. Contemporary construction is an item of great weight where an ambiguous clause is the subject of construction j and it is rarely warrantable for courts to go behind it and say that they know better what, the parties intended than they knew themselves — to say that the price was intended to be fixed when both parties treated it as cumulative.

In the fourth place, it is a matter of legislative and executive history that the price of the similar stone bought by the Government for the Treasury Department was seventy cents per foot for stones of ten feet; eighty cents for stones of twenty feet j ninety cents for stones of thirty feet, &e.j in other words, that there was a cumulative price of “one cent for every additional cubic foot,” though the standards or rests agreed upon as the basis of computation varied from the single rest provided by this contract. In the case of the cap-stones of the piers of the outside stairways the dimensions of each stone were 18 x 17 x 1.10, and the cumulative contract-price for these six stones amounted to $102,000. This enormous cost led to the interference and investigation of Congress, and thus the matter became one of public notoriety.

I am therefore of the opinion that the contract in this particular means what it says; and that what it says is that the price of the larger class of stones shall be per cubic foot 65 cents + (1 cent x the number of feet in the stone.)

Should the claimants wish to amend by making proper aver-rnents in regard to the cumulative value of building-stone, there can be no doubt of their right to introduce such evidence. It is true that evidence of usage is usually confined to the interpretation of words or phrases which may or may not appear to be technical; as, for instance, to show that a “thousand rabbits” did not mean ten hundred, but one hundred dozen, (Smith v. Wilson, 3 Barn. & Adol. R., 728;) or that “twelve shillings per day for each house-carpenter employed” did'not mean a day’s work between daylight and dark, but ten hours, (Hinton v. Locke, 5 Hill R., 437;) nevertheless, extrinsic evidence is always admissible to show the subject and surrounding circumstances of a contract. “ Every contract must have an interpretation governed in some measure by the subject-matter to which it relates, and at the same time with reference to any known usage connected therewith.” (Chief-Justice Whitman, in Robinson v. Fish, 25 Maine R., 401.) Parol evidence is not admissible to alter the written contract, but it is admissible, as was admirably said by Chief-Justice Tiudal in the case of Lady Hewley's Charities, (9 Clark & Fin. R., 367,) “for the purpose of making the written instrument speak for itself.” And I know of no court which has gone farther in this direction than the Supreme Court; and, indeed, I know of no case which has carried the principle so near the verge of laxity as the leading case of Bradley v. The Washington Steam Packet Company, (13 Peters, 102,) a case where by the light of extrinsic evidence a written contract binding the defendants “to hire the steamboat Franklin until the Sidney is placed on the route,” was construed to mean that they were not bound to hire her till the Sidney was placed on the route, but might discharge her if in the mean time the river became closed by ice. Of later eases it is sufficient to refer to Wash v. Towne, (5 Wall. R., 699,) where it is emphatically declared that courts “are never shut out from the same light which the parties enjoyed when the contract was executed,” and may view the circumstances “ as they viewed them, and-so as to judge of the meaning of the words and of the correct application of the language to the things described.”

As to the second cause of action, I concur with the majority of the court. As to’ the third, I am of the opinion that there was an agreement by the agent of the Government, subject in terms to the approval of Congress, and that this case consequently comes within the principle of Shaver & Corse (4 C. Cls. R., 440;) but inasmuch as the order as framed sustaining the demurrer will best facilitate the claimants in either presenting their whole case by amendment or in taking au appeal, I join, in the direction for judgment on the demurrer.  