
    Benaiah B. Titcomb v. The United States.
    
      On the Proofs.
    
    
      The Navy Department agrees to buy a cargo of coals, deliverable within from twenty-five to fifty days tú Mare Island. The delivery is not made. A year afterward the contractor tenders another cargo of coals, which is refused. Me brings his action, relying on the fact that when he failed to deliver, according to agreement, he proposed to the officers to send for and substitute another cargo, and they said nothing.
    
    I. Where a contractor agrees to deliver a cargo of coals as soon as possible and within from, twenty-five to fifty (lays, and he fails to do so, he cannot substitute, another cargo a year afterward and tender it to the purchaser.
    IfGiVhere a contractor agrees to deliver a cargo of coals to the Navy Department within a designated time, and, failing to do so, proposes to send to Europe for another cargo, the officers of the department are not bound to reply to his proposition, and no new agreement can be inferred from their silence. I
    
      
      The Reporters' statement of the cáse:
    The following are the facts as found by the court:
    I. That an agreement was concluded on October 1, 1864, between the claimant and Joseph Smith, Chief of the Bureau of Yards and Docks of the United States Navy Department, for a cargo of coals, to be delivered at the Mare Island navy-yard.
    II. The agreement for said cargo was afterwards modified into an agreement for the purchase of 1,000 tons of said coals. The price was fixed at $36 per ton. The quality was to be selected English coal, suitable for steam or blacksmith purposes, and to bear the test of examination and approval by engineers at the place of delivery.
    III. At the time of the negotiations for the said coals and at the conclusion of the contract the claimant had on the way from England to San Francisco, on board the ship Minnehaha, a cargo of coals which he represented to be fit for steam or blacksmith purposes, and out of which the quantity contracted for was to be delivered. The claimant, bound himself to have the coal at the navy-yard as speedily as possible — in twenty-five days from 1st October, and the time might be extended to twice that length.
    IV. The Minnehaha arrived at San Francisco on or about the 20th of November following. The cargo was not tendered to the government, nor was notice given to the commandant of the naVy-yard of its arrival. The claimant being satisfied that the coals were not fitted for the purpose needed, caused the cargo to be sold to other purchasers.
    V. On 7th October, 1864, the claimant wrote to Bear-Admiral Smith, chief of the said bureau, and expressed the hope that if the coal contracted for did not stand the agreed test, and if it were deemed unfit for the purpose needed, he might be allowed to supply its place with other coal. This proposal was not assented to. But on the 16th February, 1865, Rear-Admiral Smith, chief of the bureau, learned from the commandant at Mare Island that the claimant had written to said commandant, informing him that the claimant had ordered another cargo, which would be some time longer in arriving out than was contracted for, and authorizing said commandant to make a requisition on Flint, Peabody & Go., of San Francisco, for such quantities of coal as might be needed until the arrival of this cargo. As soon as this information was received, Bear-Admiral Smith wrote the claimant as follows:
    “Buread oe Yards and Docks,
    “ 16th February, 1865.
    “Sir: The bureau is advised, by commandant Mare Island, of a letter received by him from yon under the date of Dec. 2nd, 1864, respecting a cargo of coal for which you were negotiating with this bureau in October, 1864, to be delivered in 25 or 50 days from that date. As you did not inform the bureau whether or not you would deliver 1,000 tons of coal out of the 1,900 or 2,000 tons which you proposed to ship, other arrangements were made, and the bureau-does not now want any of your coal.
    “I am, respectfully, your ob’t serv’t,
    “JOS. SMITH,
    “ Chief of the Bur earn,.
    
    “B. B. Titoosib, Watertoion, Mass.”
    
    YI. In October, 1865, the claimant’s agents at San Francisco offered to deliver to the commandant at Mare Island navy-yard the cargo of the ship Juanita, being the cargo of coals referred to in claimant’s letter to said commandant, and which had been declined in February, 1865. He refused to receive the whole or any part thereof.
    VII. After this, the claimant wrote the Chief of the Bureau of Yards and Docks, at Washington, that he had incurred losses by reason of the transaction; and asserting his belief that he had an equitable claim to compensation, appealed to him for relief in February, 1867. He laid no claim in law to dariiages. His claim was. disallowed, because Bear-Admiral Smith did not think the government had done him any wrong in its decision.
    
      Mr. Charles F. Filie for the claimant:
    Contracts are always to be construed with a view to the real intention of the parties. (United States v. Gurney, 4 Cranch, 333; Bradley v. The Washington Co., 13 Pet., 89 (97).)
    Although language used may be indefinite, ambiguous, inaccurate, or inapt, yet if the intention of the party using it can be in any way ascertained, the court will give effect to it. (Tier-man v. Jaolcson, 5 Pet., 580 (594); Fames v. Insura/nee Co., 94 U. S., 621 (626, 628); Radford, v. Newell, L. B., 3 O. P., 52, cited and approved in Butler v. Thompson, 92 U. S., 415.)
    The silence of either party will import assent to a proposition made by the other when it would have been incumbent on him to express his dissent if he did not agree thereto, or where his silence is explicable only by the presumption of his assent. (Story on Oontr., § 379, and cases cited.)
    What the law looks to in cases like the present is not merely what is expressed by the parties, but to their acts, and all the attendant circumstances, and the practical interpretation by the parties themselves; all of which are proper matters of proof. (Ghitty on Oontr., 18 (8th ed.); Bradley v. The Washington Co., 13 Pet., 89; Chicago v. Sheldon, 8 Wall., 50 (54).)
    
      Mr. Assistant Attorney-General Simons (with whom was Mr. A. T. Gray) for the defendants:
    Upon the facts, the defendants submit that this case is based upon no contract, express or implied, and that the petition should be dismissed.
   Hunt, J.,

delivered the opinion of the court:

The claimant seeks to recover the sum of $20,521.25, as damages which he alleges he has sustained by reason of the refusal of the government to receive and pay for a cargo of coals according to an agreement between himself and the Chief of the Bureau of Yards and Docks of the United States Navy Department.

From the findings of facts in' the case, it appears that an agreement was concluded between the parties on October 1, 1864-for the quantity, quality, and price of the coal, and that the delivery was to be made at the Mare Island navy-yard as speedily as possible — within twenty-five days or twice that length of time.

No such delivery was, however, effected; but a year after the contract was concluded a tender of the quantity contracted for was made by the claimant’s agents, and was declined in behalf of the government. It is evident from the facts of the case that the parties at the time of the contract contemplated the delivery of coal constituting a portion of the cargo of the ship Minnehaha, then at-S.e&-om--herjwayffrom. England to San Francisco; but on the arrival of the vessel at San Francisco, and within the period agreed upon, no tender of the coal was made. Giving full effect to tlie principle of law invoked in the ■claimant’s brief, that contracts are to be construed with a view to the real intention of the parties, it is obvious that in this instance such a construction will not aid the claimant, who failed to perform what was really intended.

The claimant attempted to substitute another contract for that- which had been agreed to between the parties. He ordered a second .cargo of coal to be shipped from England by the ship Juanita. The coal arrived at San Francisco about the 8th October of the following year, and was then tendered and refused, as already stated. But the defendant’s agents had never as-| sented to this substitution. When it was proposed by the claimant that he should be allowed to furnish other coal than that first contracted for, the proposal was not acquiesced in. | The change involved matters of moment. It must have postponed the receipt of the supplies, and, as it here turned out, for nearly a twelvemonth. It would have maintained all this time the high prices of the contract, when prices might decline. To such important modifications, asked under such circumstances, the law does not readily infer that the defendants intended to assent from their mere silence. It was not bent on the agents of the government to speak when these proposed changes were requested. Silence was more compatible with the presumption that they refused to yield to the claimant’s solicitation than that they voluntarily assented to such modifications of their rights under the contract. This conclusion receives additional strength when we take into view the plain and perhaps abrupt language of the letter of Admiral Smith to the claimant as early as 16th February, 1865. On learning that the claimant had written to the commandant at Mare Island, informing him of the arrival of the Minnehaha, and of the disposition of her cargo, and offering to substitute coal from the Juanita’s cargo when it should arrive, Admiral Smith writes the claimant “the bureau does pot now want any of your coal.” i

The other questions of law presented to us in the claimant’s brief we deem sufficiently covered by what has already been said.

Whatever loss the claimant has incurred is in nowise chargeable to the defendants; and it is therefore ordered, adjudged, and decreed that the petition be dismissed.  