
    BLACK, KITCHEN & CO.’S CASE.'
    (10 Court of Claims R., p. 603; 91 U. S. R. p. 267.)
    Samuel Black et al., appellants, v. The United States, Appellees.
    
      On the claimants’ Appeal.
    
    
      An army transportation contract designates (Art. I) certain points of departure a?¡“such point as may he determined, upon during the year on the Missouri branch of the Union Pacific Kailroad.” In article II it binds the contractor to transport a certain quantity of freight “ from the post, depots, or stations named in article I, or from any other that may he established within the district described in said article.” The Quartermaster Department compels the contractors to send their trains a long distance to a post not designated in article I, and not situated on the Missouri branch of the Union Pacific Kailroad, to carry freight thence to another post. The con
      
      tractors insist that this point of departure is not within the obligations of the contract, and that) in addition to the eontraet-rate for transportation from post to post, they are entitled to remuneration for sending their trains to this non-designated point of departure. The court beloio, being equally divided, renders judgment pro forma for the defendants. The claimants appeal.
    
    'Though one article in an army transportation'contract designates the points of departure established or to be established, it may nevertheless be enlarged by the language of subsequent articles which relate to other subject-matters, but in which the points of departure are incidentally mentioned. Therefore, if a new post be established beyond the scope of the first article, but within that of the subsequent articles, the contractor will be bound to send Ms trains there and transport freight therefrom on the same terms as from posts expressly designated.
    
    
      
      The Reporters? statement of the case:
    The following are the findings of the court below :
    First. On the 19th of March, A. D. 1868, the claimants and ’General William Myers, chief quartermaster for the Department of the Platte, entered into a written contract for the transportation of military stores and supplies within contract-route No. 1, as therein fully set forth, which contract is annexed to and forms part of the petition.
    Seeond. At Omaha, on the 30th of April, the 1st and the 2d of May, respectively, A. D. 1888, said Myers made a formal requisition upon the claimants, by letters addressed to them both at Omaha and Cheyenne, requiring them, under the provision of article 4 of their contract, to receive within fifteen days from date, (of each of said requisitions,) at Fort Phil Kear-ney, Dakota, 300,000 pounds of miscellaneous stores for transportation to Fort D. A. Bussell, subject to such changes as might be decided upon, making, in all, 900,000 pounds of stores to be transported under said three requisitions.
    On the last-named day, May 2, 1868, General Myers notified the claimants that the destination of all said stores, so to be transported from Fort Phil Kearney, was the new posts on Wind Biver, which destination was subsequently changed, at or near the time of shipment, to Fort Steele. Fort Phil Kear-ney and Fort Steele, as well as Fort Bussell, were within the district of contract-route No. 1, as described in said contract, and within which transportation was to be performed.
    On the 23d of July, A. D. 1868, General Myers made another formal requisition on said contractors, by letters addressed to them in like manner, both at Omaha and Cheyenne, requiring them, under the provisions of article 4 of their contract, to-receive, within fifteen days from the date thereof, at Fort Phil Kearney, 200,000 pounds miscellaneous stores for transportation to Fort Steele, subject to such changes as might be determined upon.
    Third. At the dates of the several requisitions aforesaid the claimants had no teams at Fort Phil Kearney, and no teams could be procured there.
    The claimants, before performing any of the service required by said requisitions, protested to General Myers and General Augur against performing the service under the contract, claiming that they were not required to perform it by the terms thereof. But General Myers and General Augur both insisted upon the terms of the contract covering the service. The claimants again made the same protest and claim to General Myers, General Augur, and General William T. Sherman, who each insisted that the claimants were bound to perform the service under the contract. The contractors were then informed that it was necessary the work should be done; that they must notify at once whether or not they would do it; that they would be paid under the contract; and if they deemed they had any further claim, they could make it to the authorities in Washington. To which the claimants replied that they would furnish the teams that were necessary upon the requisitions, and make a claim for services beyond the contract to the authorities in Washington. And thereupon, without waiver of the respective claims on either side, the claimants undertook the service.
    Fourth. Accordingly, the claimants sent teams unladen from Fort D. A. Bussell to Fort Phil Kearney sufficient to transport the 900,000 pounds of stores mentioned in the requisitions-of April 30, May 1, and May 2, which teams, on arriving at Fort Phil Kearney, were loaded with stores for transportation to Fort Steele, according to said requisitions and notice changing the destination to that place, and the same were duly transported by said teams.
    And the claimants also sent from Fort Fetterman (within the district of said route) to Fort Phil Kearney teams unladen sufficient to transport the 250,000 pounds of stores and supplies required by the requisition of July 23,1868, tó be transported to Fort Steele, and the same were so transported by said teams from Fort Phil Kearney to Fort Steele.
    Fifth. At the several times of receiving said stores and supplies for transportation from Fort Phil Kearney by the claimants, bills of lading were made and signed by them, specifying that the freight was to be paid for by General William Myers, at Omaha, at the contract-rates. Bills were rendered, vouchers issued, and payments made for all of said transportation from said Fort Phil Kearney to Fort Steele, according to said bills of lading, under the contract and at contract-rates. The claimants have been paid in full therefor, and make no claim thereon. But the claimants have not been paid for sending teams unladen to Fort Phil Kearney to meet the several requisitions aforesaid, and for that they claim compensation.
    Sixth. The distance from Fort D. A. Bussell to Fort Phil Kearney, by the ordinary traveled route, was three hundred and thirty-nine miles. The distance from Fort Phil Kearney to Fort Steele was three hundred and fourteen miles. The distance from Fort Steele, direct, by the ordinary traveled route, to Fort Bussell was one hundred and eighty-four miles. The distance from Fort Fetterman to Fort Phil Kearney was one hundred sixty-nine miles.
    Seventh. At the contract rate the transportation of 900,000 pounds of freight (the capacity of the teams sent unladen) to Fort Phil Kearney from Fort D. A. Bussell would have been $53,370. But teams traveling unladen are able to save one-fifth of the time and expense, and deducting one-fifth of said sum therefrom, leaves $42,696.
    At the contract-rate the transportation of 250,000 pounds of freight (the capacity of the teams sent unladen from Fort Fet-terman to Fort Phil Kearney) would have been $6,750, and deducting one-fifth therefrom, by reason of the teams being unladen, leaves $5,400.
    And in addition to the foregoing findings the court also found, at the claimants’ request, as follows :
    First. That on the 30th April, A. D. 1867, besides the formal requisition of the same date, mentioned in the second finding of the court, General William Myers also sent to the claimants at Cheyenne, from Omaha, a communication by telegraph in words and figures as follows, viz:
    
      [Telegram.]
    “OMAHA, April SO, 1868,.
    “Black, Kitchen & Martin,
    “ Government Contractors, Route No. 1, Cheyenne:
    
    “ General Augur wants two hundred (200) teams, by the middle of May, in readiness to go to Fort Phil Kearney. Answer what you will do.
    “WM. MYERS, G. Q. M”
    
    And besides the formal requisition on the 2d of May, A. D. 1868, mentioned in the second finding of the court, General William Myers also sent on the same day from Omaha to the claimants, at Cheyenne, a communication by telegraph in the words and figures following, viz:
    [Western Union Telegraph Company. From Omaha. Dated I May. Rec’d May 1st, 1868, p. m.]
    “ To Black & Kitchen,
    “ Contractors, Route 1, Cheyenne:
    
    “Can’t tell their destination. Have asked General Augur, and will promptly advise you.
    “ W. MYERS, C. Q. M”
    
    That the notice from General Myers to the claimants that the destination of all of said stores, so to be transported from Fort Phil Kearney, was new posts on Wind River, (as stated by the court,) was in the words and figures following, viz :
    [Western Union Telegraph Company. From Omaha. Dated 2. Rac'd May
    2d, 1868, m.]
    “ To Black, Kitchen & Martin,
    
      llTransp’n Contractors, Route 1:
    “ The two hundred teams are to haul stores from Phil Kearney and Reno to the new posts on Wind River. Can you send twenty-five (25) or thirty (30) teams at once to Phil Kearney in-addition, to haul saw-mill and mowing-machines to Fort Fet-terman ? You had better come down to see me.
    “ WM. MYERS, C. Q. M?
    
    That in addition to the fact that these posts, Fort D. A„ Russell, Fort Phil Kearney, Fort Steele, were located withim the district of contract-route No. 1, mentioned in the second finding of the court, the fact be found that Fort Phil Kearney was a military post established prior to the date of the contract mentioned in the first finding, and that it was located about three hundred and thirty-nine miles west of north of Fort D: A. Bussell, remote from the line of railroad, and that Fort Steele does not appear to have been located and named till about the time the teams were loaded at Fort Phil Kearney, which previously proceeded unladen to that place from Fort Bussell, as mentioned in the fourth finding of the court.
    Second. That in addition to the fact that “ at the dates of the several requisitions aforesaid the claimants had no teams at Fort Phil Kearney, and no teams could be procured there,”" as set forth in the third finding of the court, the following fact be found also, viz : And the teams necessary to transport stores and supplies from Fort D. A. Bussell had to be procured from points remote from D. A. Bussell, and driven unladen to that place, said Fort D. A. Bussell having been a point on or near the Union Pacific Bailroad, then just completed to Cheyenne, which was remote from points of supply of wagon-transportation.
    Third. That in addition to the fact set forth in the first paragraph of the fourth finding of the court, the following fact be also found, viz: The service for which the Government required the teams to be sent to Fort Phil Kearney was to aid in= moving said post.
    And the claimant further requested the court to find as follows :
    Fourth. That the prevailing rate for transporting freight from Cheyenne in June and July, A. D. 1S6S, was as follows: To points south, $1.50 per 100 pounds per one hundred miles; to points west along the line of the railroad in process of construction, $2 per 100 pounds per one hundred miles; to points north and west in the direction of Fort Phil Kearney, $2 per 100 pounds per one hundred miles.
    But, instead of said fourth request, the court finds that the-prevailing rates of transportation from Cheyenne, and other-places within the district of the route covered by the contract,, were from $1.40 to $2.50 per 100 pounds per mile.
    Upon the foregoing facts, the court being equally divided in opinion as to the right of the claimants to recover, one of the' judges who considers them entitled to recover concurs with those holding the adverse view in ordering that, pro forma, for the purposes of an appeal, the petition be dismissed.
    
      Mr. 0. JP. Peck for the appellants :
    The claimants ask compensation for service of teams which they had collected at great expense from remote points in order to transport supplies from Fort D. A. Russell, a point of departure specified in article 1, and which they were ordered to send, unladen, thence to Fort Phil Kearney, a post established at the time the contract was made, and for other teams sent unladen to the same place from Fort Fetterman, (to which place they had previously carried goods,) the purpose of the Government being to secure aid in moving said post.
    In the view taken by the Government of this contract, which view constitutes the defense, the minute specifications of points of departure in article 1 accomplished no limit to the obligations of the contractors to the places named or to the base of departure specified (the railroad, west of Russell) as points of starting; on the contrary, it is assumed they were bound to start, if called upon so to do, from every conceivable point within the vast wilderness lying beyond Russell as far west as the one hundred and fourteenth degree of longitude and as far north as the forty-seventh degree north latitude.
    This theory presents a marked contrast to the theory of the Government as to the meaning of similar provisions in Caldwell’s contract. The Government seeks in this case to avoid payment for services rendered. In the case of Caldwell, they sought to avoid payment of damages for procuring transportation through others than the claimant of a large amount of supplies from the Missouri River to posts within the district of the contract.
    Caldwell (19 Wall., 264,) sued on a similar transportation-contract.
    The base of starting in his case was described as follows :
    “That said Alexander Caldwell shall receive * * * at Forts ‘Leavenworth and Riley, in Kansas, * * * and at any points or places at which posts or depots shall be established during the continuance of this contract, on the west bank of the Missouri River north of Fort Leavenworth and south of latitude 42 degrees north. And for the stores to be forwarded from Forts Leavenworth and Biley,or from any other points of departure on or near the Missouri Biver, notice shall be given,” &c.
    After the contract was made the Government collected about 4,000,000 pounds supplies at Omaha, on the Missouri Biver, north of Fort Leavenworth and south of latitude 42 degrees north, and refusing to give them to Caldwell for transportation, who was prepared to transport them at a profit of about 20 per cent., procured them transported at a cheaper rate to Columbus, Lone Tree, and Kearney stations, and still refusing to give them to Caldwell for transportation, gave them to another, who transported them, and delivered the same to the posts within Caldwell’s contract-district.
    Caldwell’s contract provided that he should “ transport all the military stores and supplies for which the Quartermaster’s Department may require wagon-transportation by contract on the route specified,” provided the weight of the same shall not exceed 10,000,000 pounds; and he brought suit for damages, alleging a breach of the contract on the part of the Government.
    As will be observed, the Missouri Biver, before the construction of the railroads west thereof, was the natural base of supply of all the military posts in that direction on the west slope of the Bocky Mountains; but this base of supply was not literally confined to the west bank of the river, for the country lying to the west, as far as 150 to 200 miles, produced supplies. But as soon as the railroad was constructed west, beyond this producing district, the base of supply was transferred to the railroad, which, owing to the changed condition of the country, became literally and exclusively the base of supply of the posts beyond. If the railroad, in the time of the Caldwell contract, had been so far constructed that it could have been relied on as a base of supply, the Missouri Biver would have been left out of the specification as a base of starting. After the contract was made, however, it was completed so that it could be' used for some distance ; and this affording cheaper transportation, the Government determined to avail itself of it. Caldwell, as soon as this determination was made, offered to transport the supplies from the railroad at the terminus of rail-transportation, but this was refused, and the anomaly was presented of two contracts for the same purpose, that is, to transport supplies from a common base (the Missouri Biver) to posts in the district west. Caldwell asserted that if he had a right to transport any stores, he had a right to transport all within the limits specified, for if the Government had a right to ship the supplies from any place not technically within the specification of starting-points, this right extended to all as much as it did to a part. He affirmed that, under a proper construction of the provisions for starting-points, the Government was bound equally with himself; for the Government, having to procure transportation of supplies, themselves elected as to what places and localities the same should be started from, and the agreement in regard to them bound the claimant to make ready by the collection of his teams at the places and base specified, and it also bound the Government to deliver the same for transportation at starting-points specified. But the theory of the Government in defending against Caldwell proceeded upon the assumption of the perfect freedom and right of the Government, after making this contract, to send any or all of the supplies from any points or places no.t technically within the specifications of starting-points. This assumption obviously involved the assertion of the right to send every pound of supplies by other contracts than Caldwell’s. Caldwell’s views of his contract failed altogether before this court, and those of the Government prevailed.
    On the whole case the language is this: u The whole matter results in this: The Government is responsibló in damages if it has sent its supplies through other parties than the claimant, from the posts of Leavenworth, Riley, Kearney, Sedgwick, or Laramie, or from other stations or posts thereafter established on the west bank of the Missouri River. The points from which it is proved to have sent supplies by other means than through the claimants are not among those named, nor are they military posts, nor are they on the west bank of the Missouri River. Omaha is not among the posts named, nor is it one established after the making of the contract. Hence there has been no breach of the contract.” (19 Wall., 270.)
    The Caldwell contract bound the contractor to transport from starting-points widely separated, upon summary notice, millions of pounds of supplies. The maximum amount specified would load 2,000 teams of ten oxen each. The maximum specified in this contract would load 5,000 teams of ten oxen each, and these teams had to be collected at Fort D. A. Russell from remote points of supply. In case of default it was provided that the Government should “ have power to supply the deficiency either by purchase, hire, or special contract,” at the expense of the claimants. Thus the entire fortuues of the contractors and their backers were staked in these contracts. What were the reciprocal obligations ? The Government, without any breach of the contract, could procure all the goods transported by others if the price of transportation declined, and could compel the claimants to transport the whole if the price advanced. Even after notice and special acceptance thereof by the claimants the Government could withhold the transportation without any breach of the contract. (BulMey’s Case, 19 Wall., 37.) The court made the following declaration in that case:
    “ If, the day after the transportation commenced, the wagons had been ordered back to the place of departure, unloaded, and the transportation abandoned, there would have been no breach of the contract. * * * It commits the Government to nothing but to pay for services rendered.” (19 Wall., 40.)
    And yet we find the Government resisting this claim for payment for services which it commanded to be rendered under the contract while it was under no obligation to do so, upon a forced construction of the specification of points of departure, no warrant for which can be found in the words of the contract or the circumstances under which it was made, but which, on the contrary, is in conflict with the expressed provisions and its fair implications, the circumstances under which it was made, and with the decision of this court in the Caldwell case.
    In all contracts for transportation of military stores on the plains and in the Territories, an agreement as to starting-points is indispensable, and is in fact the very foundation upon which they rest. All the expenditures incurred to collect teams at the starting-points agreed upon is so much advanced by the contractors on the faith of the Government pledged to furnish service and compensation from thence. The collection of teams from other points goes on continually through the whole time of the contract. The first supply of teams is drawn from the markets on and contiguous to the Missouri River. After that the collection may in part be derived from teams once employed returning from points to which they have transported goods. The profit of the first trip compensates for the first outlay of collecting teams from distant places, and the profit of the secoud trip compensates for the expenses as well of returning the teams. The employment of teams throughout the year from starting-points specified, therefore, involves the necessity on the part of the contractors to return a large part of the teams employed from points of delivery of cargoes to the u original points of departure.” It sometimes happened that the Government desired to send back from points of destination superfluous material to some intermediate point or to the original point of departure, and it was sometimes necessary to have returning teams stop at some intermediate point and take on something and leave the same at another intermediate point. This class of transportation was, however, very small, while the teams employed by the contractor were ordinarily in trains of twenty-five wagons, carrying 125,000 pounds or more. It was therefore against the interest of the contractors to delay these trains for this service, although it might be of considerable importance to the Government. In order to secure its performance, article XIY was incorporated in this contract. It is substantially the same as in the Oaldwell and other similar contracts. Some dispute probably arose before this contract as to whether the contractor was bound to stop his trains at intermediate posts to load a small quantity of goods; and to make this clear, the specification, “ or from one point to another within the route,” was added to the single sentence which constitutes article XIY in this contract. The whole sentence and article by express limitation is about goods “ to be transported back.” This is all the transportation it provides for, and it is of a sort not included in article I, and would be excluded from the contract were it not for this article.
    The Government has laid hold, not upon the whole of this article, as it appears, but upon the expression in it above quoted as the sole contract support of their theory, that every place in all this wilderness was a point of departure for claimants’ teams. This construction is made to sweep away not only all the limitations of article I, upon which the whole contract rests, but also all of the limitations of the remaining portion of article XIY, and is, therefore, as repugnant to law as it is inconsistent with and irreconcilable with the various provisions of the contract.
    It may or may not have been true that the Government, when this contract was made, intended that the contractors should assist in moving the stores from Phil Kearney. If such was the intention, it was the purpose to have it done in accordance with the terms of the contract. This required compensation to be made from the starting-point agreed upon, and, if the Government required the teams to go without loads, this concerns the Government, but does not destroy the right of the contractors to compensation. Nothing can be clearer than this: If the parties had intended that the contractors should send teams to Fort Phil Kearney, three hundred and thirty-nine miles beyond Fort D. A. Bussell, at their own expense and without compensation, after bringing them some hundreds of miles to Fort D. A. Russell, Fort Phil Kearney would have been named as a point of departure.
    If it be considered that this service was under the contract, or service supplemental thereto, the contract, so far as it can be traced, is the measure of the value thereof. It is a fair implication from the agreement to pay for loaded teams employed a specified rate, to pay for teams unladen the same rate, less the difference in time and expense.
    If it be considered that the service was outside the contract altogether, the fact that there was no expressed contract, either written or verbal, in no manner discharges the Government from the obligation to pay therefor, as is urged by the Assistant Attorney-General. On the contrary, the Government having required the service to be performed, and it having been performed, a contract to make reasonable compensation is implied ; and the contract proven is good evidence as to the fair and reasonable value thereof, no other evidence being offered by the defense.
    If it could be made to appear on technical grounds that this service was required and rendered outside the contract, so that its value could not be measured by it, then it would follow that, payment for the service of the teams employed would be due from the places on the Missouri and Arkansas Rivers from whence they were brought, instead of from D. A. Russell, as claimed. This Would entitle the claimants to an increased judgment.
    The Government having commanded the services to be performed under the contract, the least that can be accorded the claimants is to pay them on the basis of the contract from the starting-point specified in it.
    
      
      Mr. Assistant Attorney-General Smith for the United States:
    The sole question presented is the construction of a contract.
    It is apparent that the territory through which supplies had to be transported by teams was divided geographically into routes, of which the one named in this contract was numbered one. The service for which the United States agreed to pay, at the rates specified, was the carriage of goods within the territorial limits mentioned in article I of this contract. For all goods so carried it has paid the stipulated price. But a claim is here made for the travel of the empty teams to the place of loading. The legality or justice of this the United States deny. This claim is based (as it only can be) upon the assumption that there were designated places where alone the contractors could rightly be required to receive the articles to be transported; indeed, the appellants’ counsel confines it to a single point, viz, Fort D. A. Bussell. Is this correct ?
    By the first article of the contract, Black, Kitchen & Martin were to receive “at Fort D. A. Bussell, or at such point as may be determined upon during the year, on the Omaha branch of the Union Pacific Bailroad west of Fort Busseli, or at Fort Laramie,” all supplies turned over to them by the Federal officers or agents at either of those points for transportation, to be carried to any of the posts or depots that now are or may hereafter be established within the geographical limits mentioned, agreeably to the instructions from the forwarding-agent at Fort Bussell “or other place of departure.”
    If this language was all that is to be found in the contract applicable to the places of loading, it might plausibly be argued that the one point on the railroad designated within the year, with Forts Bussell and Laramie, would constitute the sole points of departure. But the whole contract is to be taken together, and this language is not, by any means, all that is to be considered in ascertaining the meaning of the parties on this branch of their agreement. At the close of that same article 1 is a stipulation that the services shall be compensated in the manner hereinafter provided by article XVIII; that is, by the mileage goods were hauled, and not by the distance traversed by the teams.
    By article II they agree to transport goods “from and to any other points, depots, or stations that may be established within the district described.”
    
      By article IY they are to have the reasonable notice there specified of the “ point the stores will be ready for delivery to them, and the place of their destination, subject to such changes as may be decided upon while in transitu,” Sc. This phraseology ■utterly refutes the idea that Fort Bussell, or any other single spot, was understood to be the one point at which alone teams were to be laden. So does article YI, where it requires the goods to be delivered “in the same lots or invoices as received at points of departure.”
    Article XI explicitly declares “ that the said Black, Kitchen ■& .Martin shall transport all the military stores and supplies for which the Quartermaster’s Department may require wagon-transportation by contract, on the route specified by this agreement, (i. e., route No. 1,) during the year ending March 31, 1869,” not exceeding twenty-five million pounds, and excepting such as the Government might choose to transport by its own means.
    Article XIII provides what shall be done in case the contractors fail to transport in accordance with their agreement, viz: that the Government officers would procure the work done by others, and charge Black, Kitchen S Martin with the extra expense.
    We quote the whole of article XIY, as found upon page 6 of the record, as entirely decisive of this controversy r
    “ Art. XIY. It is understood that if, at any time, stores or supplies are required to be transported back to any point on the road, or to any of the original points of departure, or from one point to another within the route, they shall be carried upon the same terms and conditions as herein provided.”
    These terms, so far as they relate to the agreed compensation, are found in article XYII, upon the same page of the record; according to which the contractors were to be paid, at the place named, “in the legal currency of the United States, according to the distance supplies are transported,” and agreeably to the rates specified.
    The claimants say that the theory of the Government “assumes that the claimants, after collecting their teams at Fort Bussell for service thence, might, at the will of the Government agents, be compelled to send them without compensation into the remotest borders of the wilderness, perhaps, to transport goods a few miles,” Sc. No such position is taken by the United States. The business offices of Black, Kitchen & Martin were at Omaha and Cheyenne, places separated by more than the entire width of Nebraska. At these post-offices they were to be notified where teams were to be furnished. If notified that they were wanted at Fort D. A. Bussell, they would be entitled to compensation, if, when they reached that post, no loads were provided just as a vessel hired to carry coals from Philadelphia fio Boston could recover if, on reaching Philadelphia, no cargo was. there to be put on board. (Bulckley v. United States, 19 Wall., 37.) At the bottom of page 5 and top of the following page- (and again upon the 10th page) the expression above quoted is repeated: “It is assumed he was bound to start, if called upon to do so, from every conceivable point within the vast wilderness,” &c. As a rhetorical flourish this is very good, but as an argument it is palpably absurd; for the subject of this contract was the transportation of supplies, and these old contractors knew perfectly well that it was because “the vast wilderness” did not furnish them that transportation was required at all. Those points to and from which teams would probably be sent were approximately known, or thought to be known, to both parties when they entered into their agreement. At all events, it was certain that supplies would rather have to be carted into the trackless waste than out of it. The woods were not full of them.
    Into the counsel’s elaborate re-argument of the Caldwell case — decided against him in 19 Wallace, 264 — we do not propose to enter, but we are under obligation to him for calling attention to it, as it emphasizes the clause of article XIV to which we have referred. Accepting for the present the counsel’s statement, it appears that the disagreement under the Caldwell contract arose two years before this one with Black, Kitchen & Martin was made ; that these contractors knew that Mr. Caldwell’s claim to transport all supplies within the route was resisted (successfully in the end) because his contract gave him the right to carry only those shipped from specified posts and that the fourteenth article of his contract provided only for transportation between these posts, &c.; therefore, Black,. Kitchen & Martin, in their contract now before the court, added “ the single sentence ” to article XIV, as it stood in Caldwell’s-contract, “ or from one point to another within the route.” Why was this single sentence added Oui bono ? Evidently, because-the contractors meant to preclude the Government from doing with them as was done with Caldwell, and intended to monopolize the privilege of carrying supplies from all points within the routes, whether posts, depots, or not, and whether upon the line of the railroad or “ from the remotest bounds of the vast wilderness.” If, as counsel suggests, “ some dispute probably arose as to whether the c intractor was bound to stop his trains at intermediate posts,” &e., we should like to have the cour examine article XIV, and say how the insertion of these words, “ or from one point to another within the route,” tended to facilitate the settlement of any such hypothetical controversy. Was not the contract as clear upon this subject without this clause as with it ¶
    But why suggest a probable dispute, that may be the mere figment of counsel’s imagination, to account for the use of these words, when he has just elaborately stated the precise difficulty known to have actually arisen in' Caldwell’s case and to have been solved only by extended litigation, and which this clause exactly meets.
    If the contractors meant to compel the United States by this sentence to deliver to' them all supplies that were to be transported “ from one point to another within the route,” shall they not properly be held to the corresponding obligation to convey them agreeably to the terms of the contract ?
    This language not being the old, established printed form, as Caldwell’s was, (see 8 O. Cls. R., 340, first sentence of opinion,) but an interpolation after litigation, if not because of it — post hoc, if not propter hoc — should receive the weight to which the deliberation attending its use entitles it.
    The contractors thought they knew where supplies would be likely to be taken from and to what point carried; but, to cover the contingencies of the future, inserted this clause; and it must be so read as to have the effect then designed by both parties.
    “ If a bond of indemnity recite certain matters as the subject, but also embrace in the obligation, ‘ any other account thereafter to subsist,’ such other account will be included.” (Sanson v. Bell, 2 Oampb., 39.)
    The facts stated show that the agents of the Government did not require anything of these parties except performance of the contract. If this transportation came within its terms, they were expected to perform it or suffer the legal co nsequences. There was no compulsion put upon them except that to which they bound themselves when they signed this contract. It was only “ in case of default” that they were liable to expense. It they did just what their contract required, their fortunes were not staked at all, except in the sufficiency as compensation of the sum for which they agreed to do the work. From the claimants’ line of argument one would suppose “ the Government” had some mysterious and irresistible power, or would exercise martial law to compel the transportation of these supplies or the hauling of these empty teams; whereas its sole resource was just that which any man would have had who had entered into such an agreement as this is with his fellow.
    As this court remarked iu Scott v. The United States, (12 Wall., 444,445,) there is no surer guide than the construction which parties put upon a contract by their acts. If these men really felt they were not bound to take these supplies from Fort Kearney to Fort Steele, all they had to do was to decline the service j and no compulsion was possible, no fortune staked, if they were right in their construction of the contract. But it was because they apprehended in their own minds that the position that they had assumed was untenable that they acquiesced in the requirement, but protested only in order to lay the foundation of the present claim, so as to obtain something “ extra,” if they could.
    
      
      This case seems to be in conflict with the decision of the Supreme Court in Caldwell’s Case, (9 C. Cls. R., p. 84; 19 Wall. R., p. 264.) It was there held as follows: “ The specification of the points of departure are minutely ■described in article I, and cannot be enlarged by the looser language used in article II, where another subject is provided for and the points of departure are mentioned in an incidental manner only.”
      The terms of these articles in the Caldwell contract are almost identical with those in the present contract, being as follows:
      Article 1. That the said Alexander Caldwell shall receive at any time in any of the months from April to September, inclusive, during the year 1866, from the officers or agents of the Quartermaster’s Department at Ports Leavenworth and Riley, in Kansas, &c., and at any points or places at which posts shall be established during the continuance of this contract, on the west barilc of the Missouri Biver.” (Caldwell’s Contract.)
      Article I. That the said Black, Kitchen, and Martin shall receive at any time in any of the months from April 1, 1868, to March 3, 1869, inclusive, from the officers or agents of the Quartermaster’s Department at Fort D. A. Russell, or such point as maybe determined upon during the year on the Omaha ■branch of the Union Pacific Bailroad. (Black’s Contract.)
      Art. II. That the said Alexander Caldwell agrees and binds himself, &c., to transport under this agreement from the posts, depots, or stations named in article I, or from and to any other posts, depots, or stations that may be established within the district named in said article, any number of pounds, $e. (Caldwell’s Contract.)
      Art. II. That the said Black, Kitchen, and Martin agree and bind themselves, &c., to transport under this agreement from the posts, depots, or stations named in article I, or from and to any other posts, depots, or stations that maybe established within the district described in said article, any number of pounds, &c. (Black’s Contract.)
      In Caldwell’s Case the contractor claimed that any post, depot, or station within the district was a point of departure under article II, and that he was entitled to the freight therefrom, but the Supreme Court held, as has been said, that the first article defined the points of departure, and limited them to posts on or in the vicinity of the Missouri River. In Blaelc’s Case, conversely, the contractors claimed that the first article, defining the points of departure, limited them to suolr points as might he determined upon on the “ Omaha braneh of the Union Pacific Railroad,” and inasmuch as Fort Phil Kearney was not on the Omaha branch of the railroad, that it was not a point of departure within the meaning of the contract as determined in Caldwell’s Case, and consequently that they were not hound by the contract to transport freight therefrom.
      The present case was submitted in the Supreme Court on printed arguments. The opinion, as will he seen, discusses the applicability of Caldwell’s Case upon another point, viz, the construction to be given to the terms “ posts, depots, and stations,” but mates no allusion to the controlling effect of the first article in defining or limiting the points of departure. Whether that portion of the decision in the former case escaped the attention of the oourt, or whether it deliberately intended to overrule the former decision, oannot be further elucidated by the reporters.
    
   Mr. Chief-Justice Waite

delivered the opinion of the court.

The material provisions of the contract upon which this suit is brought are as follows :

“Article I. That the said Black, Kitchen & Martin shall receive at any time, in any of the months from April 1, 1868, to March 31, 1869, inclusive, from the officers or agents of the Quartermaster’s Department at Fort D. A. Bussell, in the Territory of Dakota, or such point as may be determined upon during the year, on the Omaha branch of the Union Pacific Railroad, west of Fort D. A. Bussell, or at Fort Laramie, Dakota Territory, all such military stores aud supplies as may be offered or turned over to them for transportation, in good order and condition, by the officer or agent of the Quartermaster’s Department, at any or all of the above points or places, and transport tbe same with dispatch, and deliver them, in like good order and condition, to the officer or agent of the Quartermaster’s Department on duty or designated to receive them at any of the posts or depots that are now or may be established in the State of Nebraska west of longitude 102 degrees, in the Territory of Montana south of latitude 47 degrees, in the Territory of Dakota west of longitude 104 degrees, in the Territory of Idaho east of longitude 114 degrees, and in the Territories of Utah and Colorado north of latitude 40 degrees, including, if necessary, Denver City, or at any other poiu ts or posts on the route, agreeably to the instructions they may receive from the officer or other authorized agent of the Quartermaster’s Department charged with the duty of forwarding the stores and supplies at Fort D. A. Russell, or other place of departure; and for the faithful performance of such service they shall be paid in the manner hereinafter provided for in article XVII of this agreement, and at the rates specified and shown in the tabular statement hereto annexed and signed by the parties to this agreement, which statement is considered as part hereof.
“Art. II. That the said Black, Kitchen & Martin agree and bind themselves, their heirs, executors, and administrators, to transport under this agreement, from the posts, depots, or stations named in article I, or from and to any other post, depots, or stations that may be established within the district described in said article, any number of pounds of military stores and supplies from and between one hundred thousand pounds and twenty-five millions of pounds in the aggregate.”
“Art. XIV. It is understood that if at any time stores or supplies are required to be transported back to any point on the road, or to any of the original points of departure, or from one point to another within the route, they shall be carried upon the same terms and conditions as herein provided.”
“Art. XVII. For and in consideration of’ the faithful performance of the stipulations of this agreement, the said Black, Kitchen & Martin shall be paid at the office of the Quartermaster’s Department at Omaha, Nebr., in the legal currency of the United States, according to the distance supplies are transported, and agreeably to the rates specified in the tabular statement hereto annexed, signed by the parties to this agreement.”

The transportation for which compensation is now asked was “from one point to another within the route,’7 and full payment has been made therefor “ according to the distance the supplies were transported, and agreeably to the rates specified in the tabular statement.”

It is claimed, however, that as Fort Phil Kearney, the point at which the supplies were received for transportation, “ was within the route,” the contractors are entitled to compensation for the distance their teams traveled unloaded to reach that place, as well as for the distance the supplies were carried. This claim is based, not upon any express provision in the contract requiring or even permitting such payment, but because, as is insisted, the service rendered was not included in the obligations of the contract. The argument is that the places named in Article I are the only places at which the contractors were bound to receive the supplies to be transported. But this excludes from consideration Articles II and XIY, by which the contractors bound themselves not only to transport under the agreement from the posts, depots, and stations named in Article I, but also “ from and to any other posts, depots, or stations that might be established within the district described in said article,” and “ from one point to another within the route.” For the purposes of construction we must look to the whole instrument. The intention of the parties is to be ascertained by an examination of all they have said in their agreement, and not of a part only.

In Caldwell’s Case (19 Wall., 264) we decided that the terms “ posts, depots, or stations,” as used in Articles I and II of his contract, “in the presence of actual war and in reference to military stores,” included military posts and stations alone. Consequently, it was held that Caldwell could not claim the right of transporting supplies from railroad stations within the district which were not at thesame time military posts, stations, or depots. In the present case the starting-poiut was Fort Phil Kearney, a military “ post,” and, consequently, a “ point ” within the district at which the contractor could, under the ruling in Caldwell’s case, be required to receive stores and supplies for transportation. It is a noticeable fact, though perhaps, under the circumstances of this case, unimportant, that the provision for transportation “ from one point to another within the route,” which is found in Article XIV of the contract in this case, is not to be found in Caldwell’s contract. His contract was for the year 1866; this for 1868-’9. It is not impossible that the claim made by Caldwell may have suggested the necessity for this change in the terms of such agreements. In Caldwell’s contract, too, Article I provided that stores should be received for transportation “ at any points or places at which posts or depots shall be established.” Here the same article provided that they should be received “ at such point as may be determined upon during the year, on the Omaha branch,” &e., omitting the further provision that it should be a “post” or “depot.”

We are clearly of the opinion that the services rendered by these appellants were within the requirements of their contract, and that the only compensation they are entitled to is for the distance the articles were actually carried, and agreeably to the rates specified.

The judgment is affirmed.  