
    John B. Davis et al. v. The United States.
    
      On the Proofs.
    
    
      A contract for the transportation of military supplies hy steamboat in the wilderness of the Upper)• Missouri provides that when the full amoxmt is not delivered “twice the cost price of the stores, supplies, or stock deficient, together with the actual cost of transportation of the same from the place of purchase to the point where they were turned over” to the claimants} shall he charged to therm, “ the assessment of such damage to he made hy a hoard of survey.” A barge cax-rying governxnent freight is burnt. A hoax'd determines the value of the stores axid the cost oftx-ans-portatioxi, bxit disclaims the ixiiexit to pass xipon legal questions of liability. At the contractox's’ request a second hoax'd reconsidex-s the matter complained of and reduces the amount of the findings. Subsequently, a quax'termaste/r deducts the reduced amount fx'om a payment to the contx-actors. He also charges them with txuice the cost of the buxmt property. They px'otest, but accept the balaxxce and receipt ixifxill.
    
    I.Where a military board merely determines the value of certain supplies lost in traxisiiu, disclaiming an intent to pass upon legal questions of liability, hut a quartermaster, against the protest of the contractor, doubles the amount found hy the hoard and deducts it as liquidated damages from moneys due to the contractor, he is not concluded hy a receipt in full.
    II.Where a contract for the transportation of Army supplies by steamboat in the wilderness of the Upper Missouri provides that the carrier shall he charged with “twice the cost px-ice of the supplies deficient, together xoiih the actual cost oftranspox'tatioxi of samefroxn the place ofpux-ehase to the point where they xoere turned over” to him for transportation, the term “twice the cost price” should he taken as penalty, and not as liquidated damages.
    III.In determining whether the amount named in a contract shall he taken as penalty or liquidated damages, courts are influenced largely hy the reasonableness of the transaction, and are not restrained hy the form of the agreement, nor hy the terms used hy the parties, nor even hy their manifest intent, which will he carried out so far only as it is right and reasonable.
    
      IY. Where a party has ah option to do or not do a particular thing, or where the subject-matter is such that damages cannot well be proved, and the amount named seems reasonable, it will be taken as liquidated damages. But where there is an absolute agreement to do a particular thing, followed by a stipulation as to damages in case of breach, and the nature of the transaction is such that there can he no inherent difficulty in ascertaining the actual damages, and the amount named will more than make the other party whole, and will form an unreasonable and unconscionable recovery, it will be regarded as a penalty.
    
      The Reporters statement of the case:
    The following are the material parts of the contract on which the action was brought:
    “This agreement, made and entered into this 20th day of March, one thousand eight hundred and seventy-seven, by and between Major Benjamin C. Card, quartermaster, United States Army, chief quartermaster Department of Dakota, for and on behalf of the United States, of the first part, and John B. Davis, of St. Paul, county of Ramsey, and State of Minnesota, and Peyton S.. Davidson, of La Crosse, county of La Crosse, and State of Wisconsin, under the firm name and style of Davis & Davidson, of the second part, theirheirs, administrators, and executors, witnesseth that the said parties have convenanted and agreed, and by these presents do covenant and agree to and with each other, viz:
    “Article I. That the said Davis and Davidson shall furnish the steamboat transportation required by the United States during theboatingseason ofthe year one thousand eighthundred and seventy-seven, from Bismarck and from Fort Abraham Lincoln, D. T., and from Fort Buford, D. T., to points on the Big Horn River, or to points on the Yellowstone River, below the mouth of the Big Horn River, or between any of the said points, and shall receive at any time during said season, from the officers or agents of the Quartermaster’s Department, at Bismarck or Fort Abraham Lincoln, or at any of the points above described, such public or military stores, supplies, etc., as may be turned over to them for transportation in good order and condition, by said officers or agents of the Quartermaster’s Departm ent, and transport them with dispatch, and deliver them in like good order and condition to such officer or agent of the Quartermaster’s Department as may be designated to receive them at any of the other points above named; all such property to be delivered at its destination within the year 1877. ****** *
    “Article II. That the said Davis and Davidson agree to transport under this agreement, from and to the points or stations named or referred to in article one of this agreement, any number of pounds of stores and supplies, not, however, exceeding sixteen millions of pounds, unless the parties to this agreement shall mutually agree to an increase of said quantity, and in no case shall private freight be carried to the exclusion of that belonging to the United States.
    # # # # * *■ # ¡
    
    “Article Y. The military and public stores, supplies, wagons, and stock to be transported under this agreement shall be consigned to their respective destinations, and receipts on bills of lading shall be given by the officer of the Quartermaster’s Department serving at the place of consignment for the full quantity of stores and supplies and stock that shall be delivered; officers and soldiers shall be furnished with transportation orders, the certificates on which to.be signed by them when the transportation shall have been furnished, and upon such receipts payment shall be made to the said Davis and Davidson, as hereinafter provided; also demurrage to be allowed boats for all unusual or unnecessary detention while en route, provided such detention is caused by proper military order in writing; bill of lading to contain the usual exceptions of the dangers of navigation and fire.
    “Article YI. In all cases where stores have been transported by the said Davis and Davidson under this agreement, and loss, damage, or deficiency has occurred, a board of survey, to be applied for in writing by the contractors or their agent (one member of which board shall be, when practicable, an officer on duty in the subsistence department), shall be called without delay, on their arrival at .the point of destination or delivery, to examine the quantity and condition of the stores transported; investigate the facts, and report the apparent causes; assess the amount of loss, deficiency, or damage, state whether it was attributable to neglect or want of proper care on the part of the contractors, agents, or employés, or to causes beyond their control; and these proceedings, a copy of which shall be furnished to the contractors, shall after due approval and confirmation be attached to the bill of lading, and shall govern the payments to be made on it. Should no board of survey be called when requested by the said Davis and Davidson, through failure on the part of the Quartermaster’s Department or other military authority to have one convened, the endorsement of the receiving officer on the bill of lading shall alone govern its payment. But before such payment is made the fact must be shown that the said Davis and Davidson did make application in writiug to the Quartermaster or receiving officer for a board of survey. If the amount of loss, deficiency, or damage exceeds the value of the bill of lading, it shall be deducted from any payments due or that may become due afterwards. ■
    “In all cases where the full amount of store's, supplies, or stock is not delivered in accordance with the bill of lading, twice the cost price of the stores, 'Supplies, or stock deficient, together with the actual cost of transportation of same from place of purchase to the point where they were turned over to the said Davis and Davidson, shall be charged to said Davis and Davidson, it being understood that such charges only apply to the deficiency attributable to the fault of said Davis and Davidson in the amount of stores, supplies, or stock delivered, and not to any damage of stores, supplies, or stock actually delivered at their destination; the assessment of such damage to be made by a board of survey as above provided for in this article.
    #######
    “ Article X. For and in consideration of the faithful performance of the stipulations of this agreement, the said Davis and Davidson shall be paid at the office of the Quartermaster’s Department at St. Paul, Minnesota, or other designated points, in the legal currency of the United States, at the following rates:
    “For service rendered on the Missouri River.
    
    ^ "X* -H5 :K*
    “For the transportation of military stores or supplies, fifteen (15) cents per one hundred pounds per one hundred miles.
    “For service rendered on the Big Morn and Yellowstone Rivers.
    
    •X* ’X? -X- ¡X- ¡Xs X*
    “For the transportation of military stores or supplies, fifty-seven and one-half (57-J-) cents per one hundred pounds per one hundred miles.
    “ Said transportation to be paid in all cases according to the distance from place of departure to that of delivery, provided that the table of distances compiled under the direction of the chief quartermaster Military Department of Dakota, dated December 15th, 1876, shall govern as to distances between points fixed in said table.
    •X- -X- X- X* -X- -X- X*
    “Aeticle XII. This contract is not to be effective until approved by the commanding general, Department of Dakota, and of the Military Division of the Missouri, and by the Secretary of War.
    “ In witness whereof, the undersigned have hereunto placed their hands and seals at St. Paul, Minnesota, the day and date first above written.
    “Benj. C. Caed, [seal.]
    “ Quartermaster, U. S. A.
    
    “Jno. B. Davis. [seal.'
    “Patton S. Davidson, [seal.'
    “Witnesses:
    “J. Loyd.
    “A/m. Pettit.
    “John H. Y. Roberts.”
    
      (Endorsed:)
    “Headquarters Department oe Dakota,
    “ St. Paul, Minn., March 23, 1877.
    
    “ Approved.
    “Alered H. Terry, Brigadier Gen., U. S. A., Commanding.
    
    “Headq’rs Mil. Div. oe the Missouri,
    “ Chicago, March 26, 1877.
    “Approved.
    “P. H. Sheridan,
    
      " Lieutenant- General, Commanding.
    
    “Approved.
    “War Dep’t, April 2,1877.’’
    “Geo. W. McCrary,
    “ Secretary of War.
    
    
      I
    
    
      The following are the facts of this case as found by the court :
    I. On the 20th March, 1877, the claimants and Maj. B. C. Card, a quartermaster of the defendants, entered into the contract set forth in the petition.
    II. On the 2d June, 1877, the defendants’ officers shipped from Bismarck under the contract aforesaid, 380,000 pounds of lumber upon the claimants’ barge, Bill Gray. The barge was not a steamboat within the meaning of the Article III of the contract, but was in fact towed by such a steam propelling vessel. At the time of the shipment, the* claimants gave to the defendants’ officers the following receipt or bill of lading:
    [Form No. 18.]
    “Quartermaster Department, U. S. A.
    “ No. 319. Marine.
    “ (Original.)
    
      " Bill of lading.
    
    ■“Bismarck, D. T., June 2nd, 1877.
    “ Beceived from 2nd Lieut. O. St. J. Chubb, 17th Inft., A. A. Q. M., United States Army, on board of the barge Bill Gray, of Saint Louis, Mo., whereof the undersigned is master or agent for this present voyage, now lying in the port of Bismarck, D. T., and bound for Post No. 2, Big Horn, M. T., the following articles of public property as specified below (contents and value unknown), in apparent good order and condition, to be forwarded to Post No. 2, Big Horn, M. T., the dan- { gers of the seas only excepted, and there to be delivered in like good order and condition unto post quartermaster, TJ. S. A., for which I have signed a bill of lading in duplicate. Freight to be paid on the original bill of lading by disbursing quartermaster, TJ. S, Army, at Saint Paul, Minn., and at the rates named below, and to the order of Davis & Davidson.
    “Davis & DavidsoN, “Per J. H. liEANEY, Agent.”
    “Depot Quartermaster's Oeeioe,
    “ Bisnmrclc, D. T., June 2nd, 1877.
    “ I certify that I have shipped this day, by the barge Bill Gray, the stores specified in this bill of lading, and that the weight is three hundred and eighty thousand (380,000) pounds.
    “0. St. J. Chubb,
    “ 2d Lt. 17 Inf., A. A. Quartermaster U. S. Army.
    
    
      
    
    III. On the 2d of June, 1877, the barge Bill Gray, having the defendants’ lumber on board, and the barge Ida were taken in tow by the steamboat Savannah, also belonging to the claimants, and the voyage up the Missouri was' begun. '
    When the Savannah reached a point 20 miles above Bismarck, her captain, finding that he could not conveniently tow both barges, moored the Bill Gray to the shore at that point and proceeded up the river with the Ida to a point on the Yellowstone 30 miles above Fort'Buford, where he was compelled to moor it to the shore; he then proceeded and arrived at Post No. 1, Tongue Biver, on June 26, 1877.
    On June 30, 1877, the steamer Victory, belonging to claimants, and having on board John B. Dayis, one of the claimants, left Bism arele on a trip up the Missouri, having in tow the barge Ebberman; when she reached the point at which the barge Bill Gray had been left by the Savannah, she took this barge in tow and towed it up the Yellowstone 30 miles above Fort Buford, to Luthany & Mussells’ wood yard, where both barges were tied up, and at which place the barge Ida was lying moored. The Victory then proceeded to Tongue Biver, and after unloading her cargo returned to the wood yard, and taking the barge Ebberman in tow, towed it to Tongue Biver; after unloading this cargo she returned to Fort Buford, arriving there on July 26.
    The Savannah left Tongue Biver on July 22, and upon reaching the wood yard, where the barges Ida and Bill Gray were moored, some of the crew refused to go back up the Yellowstone ; she therefore ran down to Fort Buford to get a crew. On July 25 the Savannah and Victory (the Victory having a cargo on board) left Fort Buford for Tongue Biver; on arriving at the wood yard part of the lumber from the Ida was transferred to the Savannah, and the Ida was then taken in tow by her, and the Victory took the Bill Gray in tow; both boats then proceeded up the river, the Victory preceding the Savannah. The Savannah .towed the Ida 67 miles above the wood yard, and as the water was getting low the barge was tied to the shore; the Savannah then proceeded up the river, and upon arriving, July 27, at Peninah Chute, 70 miles above the wood yard, found the Victory and the barge Bill Gray aground. After assisting them in getting off the bar she proceeded on her voyage.
    The Victory being unable to tow the Bill Gray farther up the river, left it moored at Peninah Chute, placing Theodore Holman, one of her crew, on board to act as guard; she then proceeded on her voyage, on the 1st of August.
    On the 4th of August the guard, Theodore Holman, left the barge Bill Gray and boarded a passing steamer named Silver City.
    On the 6th of August the Silver City passed Peninah Chute and found tbe barge Bill Gray with its cargo of lumber almost entirely consumed by fire and still burning.
    At the time when Holman, the guard, left the barge there were numbers of Indians in the vicinity. When the Silver City found the barge burning, on the 6th August, the tracks of Indians were found in the sand adjoining the barge, some 15 to 20 rods from where she lay ; but no other or more direct facts as to the cause of the fire appear.
    IV. The claimants were hindered and prevented from bringing forward the barge Bill Gray to its port of destination by the action and orders of the defendants’ officers and the exigencies of the service, and brought her forward as soon and as fast as possible under these exigencies. If the steamer Savannah had not been interfered with by the officers of the defendants «he might have returned to the wood yard by June 25, and have gone forward with the barge Bill Gray, and reached Post No. 2, her destination, by July 10. That this was not done was the result of unexpected demands on the part of the United States and their officers.
    V. The claimants did not demand a board of survey as it was provided they might by Article VI of the contract; but the defendants’ officers, nevertheless, called a board of survey under Special Orders No. 166, Department of Dakota, dated December 3, 1877, for the purpose of inquiring into and reporting upon the loss of lumber burned on the barge Bill Gray. This board convened December 4, 1877, at Saint Paul, Minn., and on January 23,1878, reported among its findings “that the carriers in the case of the lumber in question, Davis & Davidson, are responsible for the loss thereof.” It also found the cost of the lumber to be $2,399.80, and cost of transportation to Bismarck $2,223.
    After the foregoing report of the board of survey had been filed, Williams & Davidson, attorneys for claimants, applied to General Alfred H. Terry to have the proceedings of the foregoing board of survey reopened, which request was granted by order of Brigadier-General Terry, dated April 18, 1878. In pursuance thereof the board met at Saint Paul June 7,1878, and after hearing counsel for claimants, on the 10th June reported :
    “ The board has given careful consideration to the arguments submitted, and to the additional affidavits furnished, but fails to discover any reason for a change in the general opinion expressed by the board as originally constituted, holding the contractors responsible to the government for the destruction of the lumber. In this connection it may be remarked that the board assumes that it does not fall within its province to pass upon the applicability of iminciples of law, which might possibly have some weight were the case pending before a civil tribunal, but that its duty is simply to determine, in the light of all the facts, the question of responsibility.
    “ The board find tl'iat the cost of the lumber destroyed was $1,754.79; that the cost of transportation to the point where it was turned over to the contractors was $1,832.15; and it is of opinion that Davis & Davidson, the contractors, are liable to the forfeiture provided by the terms of the contract.”
    This report, on June 19,1878, was approved and confirmed by Alfred H. Terry, brigadier-general, commanding Department of Dakota.
    In accordance with the findings of the board of survey, the sum of $5,341.63 (being twice the cost of lumber and cost of transportation) was deducted from the amount due by the United States to claimants for transportation, and on July 23, 1878, the sum of $430.73, being the amount found due to claimants, was paid them, as is more fully set forth in the next finding.
    YI. During the year 1877 there became due to the claimants for the transportation of supplies under their contract, other than the transportation of the lumber on the barge Bill Gray, $5,772.36; but the defendants’ officers, on the 23d July, 1878, stated the account set forth in the petition, wherein they credited to the claimants the above amount, but debited them with twice the value of the lumber shipped on the Bill Gray, with the cost of the transportation thereof, as found by the second board of survey referred to in the preceding finding. The balance of the account so stated, viz, $430.73, was thereupon paid to the claimants, and they at the same time gave the receipt in full appended to said account. The claimants, through their agent, at first refused to sign a receipt in full; but Colonel Lee, the officer who stated the account, refused to make the payment until they did so. The agent then gave the receipt, protesting at the samé time, orally, against the reduction, and notifying Colonel Lee that they would seek to recover the amount of the reduction elsewhere. Colonel Lee made the payment with a full knowledge and understanding of that intent.
    
      
      Mr. George A. King for the claimant:
    Neither the contract nor the law required impossibilities. Both required such steamboat transportation as was then in use on the Western rivers, and that such transportation should be done in the same manner that like transportation is usually done on those waters. Transportation by barges is one of the best-known and most approved of all the methods on those rivers, and for one boat to tow a distance and from necessity or peril leave the barge lor another boat or trip is a universal practice where the cargo is of such a character that no harm can befall it from usual causes. Rain could not injure .it; storms could not harm it; suns could not parch or melt it. The public enemy, fire, and the perils of navigation could alone destroy it, and these dangers attended everywhere and were not increased by tying up the barge to an island, and if they were, tying up to the island was an absolute necessity to avoid a still greater peril of navigation. Such delays are occasioned by causes beyond the control of the claimants, and for which they were not responsible. {Swetland v. Boston mid Albany Bail-road, 102 Mass., 276; Clark v. Barnwell, 12 How., 272.)
    These perils were all assumed by the defendants, and the claimants were required to use ordinary skill, due diligence, and reasonable care in the performance of the contract, and this they bestowed, and hence there was no breach and no damage.
    It is clear that the loss of this lumber occurred from a peril that the contract excepted against, viz, fire. The rule is clearly laid down in Clark v. Barnwell (12 How., 272) in such a case.
    The claimants did not demand the board of survey in writing or otherwise, and this under the contract was a privilege that might be exercised by them or not, at their option, and an application for a rehearing after a board had been convened without their consent, and had decided adversely to them, has not the legal effect of originally demanding a board under the provisions of the contract. The board of survey was composed wholly of the officers and agents of the defendant, and could not be considered as indifferent third persons or strangers, and hence their report cannot justly be held to have in any degree the conclusive character of an award. {Smith v. Boston, Concord and Montreal Railroad, 36 N. H., 458; Ranger v. Great West
      
      ern Railroad Company, 5 H. L. Oas., 72-105; Laumcm v. Young, 31 Penn. St., 306.)
    Neither party to a contract like the one at bar ever intends to or understands by such a'stipulation as that under consideration that he does cut off his rights to have the contract construed and applied by the judicial department. Amount of damage or loss may by determined, the facts and circumstances pertaining to the same, but who shall sustain the loss under the terms of the contract is the question reserved for the courts.
    The provision in the contract that twice the cost price of the stores, supplies, or stock deficient, together with the actual cost of transportation of the same from place of purchase to the point where they were turned over to the said Davis & Davidson, fixes a penalty and not liquidated damages, and under this provision only the actual damages can be collected or offset against the amount due the claimants. (Tayloe v. Sandiford, 7 Wh., 13; Goldsborough v. Balcer, 3 Or. O. 0., 48; Swain v. United States., Dev. O. 0., 35.)
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The claimants were common carriers, and must be held responsible under the decisions relating to common carriers. The doctrine of the English common law, which renders persons transporting goods for hire by water, for all persons indifferently, liable as common carriers, is the established doctrine of this country. (Angelí on Carriers, 4th ed., §§ 79,80, 88.)
    The slightest neglect on their part, or on the part of their agents or persons in their employment, rendered them liable. (Angelí on Carriers, §§ 88, 91.)
    The contract provided for transportation by steamboat, but claimants varied the contract by shipping by barge. They must therefore be held liable for any loss which occurred while transporting bybarges. (Wileox v. Farmalee, 3 Sanf., 610; Merrick v. Webster, 3 Mich., 268.)
    Even if it is held that the provision in the contract regarding the exception of loss by fire should prevail instead of the bill of lading, no recovery can be had, for the reason that the loss of the lumber by fire was caused by the negligence of claimants, and could.have been prevented by them by using proper diligence. (Ciarle v. Barnwell, 12 How., 272.)
    
      The contract being entire, no action will lie for a part performance. (Lcmtry v. Parks, 8 Cowan, 63; Faxon v. Mansfield, 2 Mass., 147; Martin v, Sehoenberger, 8 Watts & Serg., 367.) A carrier is not entitled to freight until there has been an actual delivery. (Harris v. Band, 4 N. H., 259, 555.)
    As the contract provided in the case of loss of or damage to stores that a board of survey should be called to investigate the facts and assess the damage, in case the loss was attributable to neglect or want of proper care on the part of contractors, and as a board of survey was called which, after investigating the facts, found that the claimants were responsible for the loss of the lumber, and that the sum of $5,341.63 should be deducted from the amount due them, this findingis conclusive upon claimants, and the petition should therefore be dismissed. When a board of survey is called, both parties are concluded by its findings. (Braden v. United States, 12 O. Cls. It., 164; Kihlberg v. United States, 13 C. Cls. It., 148; Kihlberg v. United States, 97 U. S., 398; Sweeney v. United States, 15 C. Cls. B., 400.)
    It is a well-settled principle of law that appearance cures all defects in service, and as claimants appeared before this board without making any protest, it is too late now to object to any irregularities.
    Claimants had perfect liberty to reject the terms proposed; but having once accepted the amount tendered in satisfaction of the whole amount claimed, and expressing the same in writing, they are now bound by their written agreement. (Savage v. United States, 92 U. S., 382; United States v. Child, 12 Wall., 232.)
    In answer to claimants’ fourth point, that twice the cost price of the stores, supplies, or stock deficient should be treated as a penalty and not as liquidated damages, I would say that the parties had a right to provide in their contract what damages should be paid for losses incurred through the negligence of claimants, and after agreeing that the assessment of such damages as were provided for in the contract should be made by a board of survey, and the board of survey having assessed the damages as provided, their finding is conclusive, and the question as to whether the amount retained was a penalty or liquidated damages cannot now be considered.
   Nott, J.,

delivered the opinion of the court:

It appears by the findings of fact in this case (1) that a board of survey having found adversely to the claimants, they requested that the adjudication of the board be reopened; (2) that the defendants acceded to the request and referred the investigation of the matters in controversy to a second board of survey; (3) that the claimants appeared by counsel and were heard by the board; (4) that the new board reduced materially the amount of the claimants’ liability, but nevertheless reported adversely to them; (5) that at a subsequent day an officer of the Quartermaster’s Department stated an account in which the claimants’ services were credited and their liabilities, as determined by the second board of survey, were debited, and that he- paid to them the balance remaining of the account, they protesting against the reduction, but at the same time giving their receipt in full.

These facts we think preclude the court from adjudicating the primary legal liabilities of the parties, and bring the case within the decisions of the Supreme Court in the cases of Adams (7 Wall., 70), Child, Pratt & Fox (12 id., 232), Justice (14 id., 535), Savage. (92 U. S., 382), and Silliman (101 U. S., 465).

But while we agree with the counsel for the defendants in thinking that the court is precluded by the acts of the claimant from retrying questions of liability which were determined by the board of survey, we likewise think that the decision in this case should not be carried beyond the decisions of the Supreme Court in the cases cited.

The difference between this case and those of Adams and Child, Pratt & Fox is to be found in these facts: In those cases a military commission made a specific reduction from each claimant’s account; each accepted the reduced amount, receipted therefor in full, and then brought his action for the balance withheld. It this case the board of survey merely found the facts and expressly disclaimed an intent to pass upon legal questions of liability which the board evidently thought properly belonged to a court of justice. What the board really determined was (1) that the loss of the defendants’ lumber was caused by the fault of the claimants, (2) that its cost at the place where it was purchased was $1,754.79, and (3) that its transportation from the place of purchase to the place where it was turned over to the claimants was $1,832.15; and there the ' board intended to stop, and thus-far the claimants are concluded from- questioning the justice of its decision. But when the claimants’ account for other services was made out by a quartermaster, he not only charged them with the cost of the lumber and the cost of its transportation, but he also doubled the cost of the lumber and deducted it from the account, apparently upon the ground that a provision to that effect in the contract was intended as liquidated damages, and not by way of penalty. Inasmuch as the claimants duly protested against the reduction, and inasmuch as the defendants’ right to make it depended not upon the findings of the board of survey, but upon the proper construction to be given to an express contract, we’ think the receipt does not preclude the court from passing upon this question of legal liability. (Bostwiclc’s Case, 94 U. S., 53.)

■ The contract which is the foundation of this action provides that “in all cases where the full amount of stores, supplies, or stock is not delivered in accordance with the bill of lading, twice the cost price of the stores, supplies, or stoch deficient, together with the actual cost of transportation of same from place of purchase to the point where they were turned over to the said Davis & Davidson, shall be charged to said Davis & Davidson, it being understood that such charges only apply to the deficiency attributable to the fault of- said Davis & Davidson in the amount of stores, supplies, or stock delivered, and not to any damage of stores, supplies, or stock actually delivered at their destination, the assessment of such damage to be made by a board of survey, as above provided for in this article.”

The claimants, who were these transportation contractors, had a barge burnt while aground, probably by Indians, on which was certain lumber of the government; and the question which the contract now presents is whether the provision that twice the cost price of the lumber should be charged to the contractors shall be construed as of the nature of penalty or liquidated damages.

It is to be noted on the one hand that the defendants’ property confided to the claimants- was to be carried into the wilderness of the Upper Missouri, Yellowstone, and Big Horn, and that from the beginning of the route to the end there were no markets into which they could go to replace their lost stores and supplies, or in which such supplies would have a fair market value; and, on the other hand, that the provision quoted is not confined to stores-and supplies wantonly withheld or wrongfully converted or lost through the claimants’ gross negligence, but is made expressly applicable to “all eases where the full amount of stores, supplies, or stock is not delivered,” or, in other words, to all the incidental and accidental losses which in a greater or less degree attach do and attend the business of the common carrier and transportation agent, and for the loss of which the-law attributes to him fault, and ordinarily holds him responsible.

It is likewise to be noted that this contract, unlike most of those in the reports, does not name a specific “sum in gross” as penalty or liquidated damages, but, on the contrary, uses merely the words “ twice the cost price of the stores.” Here the thing to be recovered is both uncertain in amount and blended with something which the defendants were certainly entitled to recover as damages, viz, the cost price of the stores. Nevertheless we apprehend that no form of contract will preclude a court from looking at the real nature of the agreement. If the contract could designate “twice” the cost price of the supplies, it could likewise designate ten times the cost price; and the question in all such cases sooner or later must be met, whether an .excessive amount designated in any way in a contract is to be taken as penalty or liquidated damages.

Concerning the law applicable to such cases we remark:

1. In determining whether an amount named in a contract is to be taken as penalty or liquidated damages, courts are influenced largely by the reasonableness of the transaction, and are not restrained by the form of the agreement nor by the terms used by the parties, nor even by their manifest intent. Where the contract has expressly designated the amount named as liquidated damages, courts have held that it was a penalty; and, conversely, where the contract has called it a penalty it has been held to be liquidated damages; and again, where the parties have manifestly supposed and intended that an exorbitant and unconscionable amount should be forfeited, the courts have carried out the intent only so far as it was right and reasonable.

2. "Where a party to a contract has an option, in effect, whether he will do or not do a particular thing, or where the subject-matter of the agreement is of such a nature that damages could not well be proved or estimated, and the amount named seems a reasonable approximation to the damages which the other party might actually suffer from the non-performance, it will be held that the amount named shall be taken as liquidated damages. But where there is an absolute agreement to do a particular act, followed by a stipulation as to damages in case of a breach, and the nature of the transaction is such that there can be no inherent difficulty in ascertaining the actual damages, and the amount named in the contract is so excessive that it will not only make the other party whole, but form an exorbitant and unconscionable recovery, it will be held that the amount named should be regarded as a penalty. Thus in Pearson v. Williams (24 Wend., 244; 26 id., 630) the plaintiff had sold to the defendants city lots the price whereof was $21,000, and the defendant had agreed to erect thereon certain designated houses within two years or forfeit to the plaintiff $4,000, and it was held that the amount named was liquidated damages. But if instead of $4,000 the same contract, employing precisely the same language, had named $42,000 as the amount to be forfeited for the non-erection of houses on lots worth $21,000, it is certain that the same courts would have held the amount named to be a penalty and not liquidated damages.

Now, what are the circumstances and conditions of the case before us? If the contract were silent, the damages for property lost through the fault of the carriers would be its value; that is to say, the amount for which it could be replaced. But here the service was to be performed through a region where the property could not be replaced nor its value ascertained. The contracting parties therefore provided that, instead of value, cost should be the primary criterion, and that the cost should be ascertained by taking the actual cost of the article wherever purchased by the government, and adding thereto the cost of its transportation to the place of shipment, i. e., the place where it was turned over to the claimants. So far as the evidence discloses, these elements made all of the government’s actual damages; if they had been paid to the government the morning after the disaster, the payment, so far as can be perceived, would have made the government whole. If, however, the contract had provided that to cover contingencies a reasonable percentage on the cost of the lost articles should be added, the percentage would undoubtedly be regarded as liquidated damages. But when we find that the amount added to the actual damages is one hundred per cent, of the cost of the article, and that the service was one in which such losses are, in a greater or less degree, almost inevitable, and that the circumstances attending the service moreover made it a novel and perilous undertaking, we are constrained to say that “ twice the cost price” of the lost article would give to the government exorbitant and excessive damages, and that the provision should be regarded as in the nature of a penalty.

The judgment of the court is that the claimants recover of the defendants the sum of $1,754.79.  