
    PIPER & LAFLIN’S CASE.
    James L. Piper et al. v. The United States.
    
      On the Proofs.
    
    
      The Commissioner of Indian Affairs advertises for transportation from Wiohitafor certain designated Indian supplies to be sent to certain agencies. One item is flour. The claimants’ bid for all the supplies is accepted. The contract specifies the supplies as those io be purchased by the Bureau for the public service, and transported over a certain railroad, under a designated contract ivith that road. Instead of purchasing all of the supplies asid sending them over that road, as contemplated by the advertisement, and supposed by the contractors, the Bureau pus-chases the flour from third persons deliverable at the agencies by the vendors. The contractors being ready to transport the flour and being bound to transport the other supplies, and being thus disappointed in'receiving the flour, bring this action for the profits they might have made.
    
    Where, by the terms of a contract, the claimants are bound and entitled to ■transport all the goods which may he purchased by the Indian Bureau for the public service, and transported over a certain railroad, under a designated contract with that road, it is not a breach for the Bureau to buy goods deliverable by the vendors at those agencies.
    
      The Reporters’ statement of the case:
    The clause of the contract designating the supplies to be transported by the claimants was as follows:
    “First. The said Piper and Laflin agree to transport from the depot or storehouse of the Atchison, Topeka and Santa Fé Eailroad, at Wichita, Kansas, or from such other point on the line of said railroad as may be designated by the said party of the first part, to the Upper Arkansas, Wichita, and Kiowa Indian agencies in the Indian Territory and to such other points in the Indian Territory as may be required by the said superintendent of Indian affairs all the goods, subsistence stores, merchandise, and freights purchased by the Indian Department for the public service, during the fiscal year commencing the first day of 7th month, (July,) A. D. 1873, and ending the 30th day of the Gth month, (June,) 1874, and transported over said Atchison, Topeka and Santa Fé Eailroad, under contract with M. L. Sargeant, general freight-agent thereof, of even date herewith, and estimated at eight hundred tons, more or less. All of said freight shall be delivered at such intervals and in such quantities and to such points as the said party of the first part may require, and it is expressly stipulated and agreed that three-fourths of the same shall be delivered between the 1st day of 7th month, (July,) and the 20th day of 12th month, (December,) A. D. 1873, and the residue by the 15th day of 6th month, (June,) A. D. 1874; all tobe delivered in good order and condition to the agents at the designated points of delivery, and the agents’ receipts therefor returned to the said party of the first part.
    “The said party of the second part also agrees to transport from the Leavenworth, Lawrence and Galveston Railroad, at Independence or Ooffenville, Kansas, to the Kaw, Neosho, and Sac and Fox Indian agencies, such portion of the freights designated for the public service in these agencies, during the fiscal year stated above, as the said party of the first part may require.”
    The court found the following facts:
    I. H. R. Glum, Acting Commissioner of Indian Affairs, wrote to Enoch Hoag, superintendent of Indian affairs, at Lawrence, Kans., the letter dated March 24, 1873, set forth in the petition.
    II. “The enclosed advertisement” referred to in said letter, so far as it contained anything referring to supplies for the Kiowa, Upper Arkansas, and Wichita agencies, was in the following words and figures:
    “Department op the Interior,
    “Oppice op Indian Affairs,
    “ Washington, March 20, 1873.
    “Sealed proposals, in duplicate, will be received at Nos. 40 and 42 Leonard street, New York, until 12 o’clock in. of Tuesday, the 29th day of April, 1873, which place will be open for business on and after the 8th day of April, 1873, for furnishing the following-named articles, required for issue to Indians at the agencies named:
    “upper ARKANSAS AGENCY.
    “ 1,370,000 pounds, gross weight, of beef-cattle, on the hoof.
    276,000 pounds XX flour, or 23,000 pounds per month.
    
      22,000 pounds coffee, (green.)
    45,000 pounds best brown sugar.
    2.800 pounds plug-tobacco, in boxes.
    2,600 pounds best brown soap, in boxes.
    4.800 pounds salt, fine, in barrels.
    “KIOWA AGENCY.
    “ 2,500,000 pounds, gross weight, of beef-cattle, on the hoof.
    500,000 pounds XX flour, or 41,666 pounds per month.
    30,900 pounds coffee, (green.)
    63,600 pounds best brown sugar.
    4,000 pounds plug-tobacco, in boxes.
    7.500 pounds best brown soap, in boxes.
    7,000 pounds salt, fine, in barrels.
    3,000 pounds saleratus, in boxes.
    “WICHITA AGENCY.
    “1,130,000 pounds, gross weight, of beef-cattle, on the hoof.
    138,300 pounds XX flour, or 11,525 xiounds per month.
    15,500xiounds coffee, (green.)
    32,000 xiounds best brown sugar.
    2,000 pounds plug-tobacco, in boxes.
    4,000 pounds best brown soap, in boxes.
    3.500 pounds salt, fine, in barrels.
    2,000 pounds saleratus, in boxes.
    “All the supplies, except the beef, will be inspected and received by the Government at New York, Philadelphia, Chicago, Cincinnati, St. Louis, Omaha, Kansas City, Sioux City, or Yank-ton, and, with the further exception of flour, must be delivered, packed and marked for shipment, by the 1st day of June, 1873.
    “The flour must be ready for inspection and delivery at such times and in such quantities as will secure at each agency, at all times, at least one month’s supply.”
    This advertisement was shown by the said Hoag to the claimant, Piper, before the claimants made proposals under the advertisement mentioned in the next succeeding finding.
    III. The said Enoch Hoag made and published the advertisement dated “4th m<*5th, 1873,” set forth in the petition.
    IY. Under said advertisement the claimants made proposals for the transportation of goods and supplies purchased by the Indian Department for the public service in the Kiowa, Upper Arkansas, and Wichita agencies, and their proposals were accepted, and the contract between the said Hoag and the claimants was entered into, as set forth in the petition.
    Y. On the day of the date of said contract the said Hoag entered into and signed the agreement set forth in the petition with M. L. Sargent, general freight-agent, for and in behalf of the Atchison, Topeka and Santa Fé Railroad.
    YI. Between the 1st of July, 1873, and the 1st of July, 1874, the Government purchased and caused to be transported to and delivered at the said three,agencies flour in the following quantities, to wit: At the Kiowa agency, 569,400 pounds; at the Upper Arkansas agency, 276,000 pounds; and at the Wichita agency, 156,150 pounds; no part of which was delivered to the claimants for transportation under the aforesaid -contract with them; but all of it was transported to said agencies by other parties, under contracts between them and the Bureau of Indian Affairs at Washington.
    VII. If the said flour had been delivered to the claimants for transportation, they were prepared to transport it, on the terms set forth in their said contract; and the transportation thereof would have cost them, in the winter season,.from one dollar to one dollar and twenty-five cents per 100 pounds per 100 miles; and in the other seasons eighty cents per 100 pounds per 100 miles.
    VIII. It does not appear that any part of the flour mentioned in finding VI was transported to Wichita over the Atchison, Topeka and Santa Fé Railroad.
    Upon the foregoing facts the court, upon the grounds set forth in the accompanying opinion, holds that the claimants are not entitled' to recover.
    
      Mr. J. W. Smith for the claimants:
    The exact issue in this case is whether or not the flour in question was included in the contract. It is simply a question of the application of the contract to its proper subject-matter. In offering parol testimony on this point, it is not proposed to contradict, vary, add to, or subtract from tfe contract, or to import new words into it, or to show what the parties secretly intended as opposed to what they have said, but rather to show what that intention was that they did express, and to satisfy the Court that the flour in question was, in contemplation of the contracting parties, part and parcel of the “ goods, subsistence stores, merchandise, and freights ” stipulated to be transported, first by the A. T. and S. F. B. B., and then by the plaintiffs. “ Whether parcel or not of the estate demised, is always matter of evidence.” (Dóe v. Burt, 1 T. B., 704.)
    “ We think we may lay down this principle as the just result: that in giving effect to a written contract by applying it to its proper subject-matter, extrinsic evidence may be admitted to prove the circumstances under which it was made whenever, without the aid of such evidence, such application could not be made in the particular case.” (Bradley v. W. & A. 8. P. Go., 13 Pet., 99.)
    Extrinsic evidence has been admitted in many cases to show whether words were used in a past, present, or future sense.
    The ambiguities in the Piper-Laflin contract are of the same nature. The word “ purchased ”„is susceptible of a past or prospective sense. It may mean goods that had been purchased or goods to be purchased, or both. Iu the railroad. contract to which reference is made the goods are spoken of as “purchased” (past) and “requiring (present) transportation,” indicating that they had been purchased and were then ready for and awaiting needed transportation. And while the word “transported,” which apparently occupies an equivalent position in the same sentence, seems to have been used in a future sense, on the other hand the stipulation to deliver three-fourths of the goods by December 20 points strongly to a purchased and specific subject-matter — to a past sense of “ purchased” — for if future, how could it be known how much three-fourths was or when there had been compliance with this stipulation ? (The stipulation that “ all of said freight shall be delivered at such intervals and in such quantities and to such points as the said party of the first part may require ” was evidently intended to give the Government the selection of the goods to be taken by each train, and of its destination according to the needs of the agencies.)
    The advertisements and the parol evidence in this case show the meaning of the contract to be that contended for by the claimant.
    
      It can be sufficiently gathered from the language of the contract and from admissible parol evidence that the true subject-matter of the contract was the goods named in the advertisement of May 20. The words “ and transported over said,” &c., may be rejected as surplusage under the rule of falsa demonstrate non nocet, or they may be read (as they were unquestionably intended) “to be transported.”
    It is manifest that had this flour been tendered to the plaintiffs to carry, or had it been supplied as the Indian Department led them and Mr. Hoag to believe it would be supplied, they could not have evaded its carriage under the general language of the contract, and what the one party was obliged to carry the other party was obliged to furnish to be carried.
    ilir. Horace M. Hastings (with whom was the Assistant Attorney-General) for the defendants:
    The case falls directly within aud is to be governed by the principles declared in Lobenstein v. The United States. (91 O’. S.. R, 324-330; 9 C. Ols. K., 135, 140.)
    Lord Denman once said of an action similar in principle to this, “ There is nothing in this case but a great deal of ingenuity and a little willful blindness to the actual terms of the instrument itself. [Thomas v. Thomas.) This remark of his lordship would prove apposite here could we see the ingenuity, for the willful blindness to the actual terms of the instrument is very apparent.
    The following are extracts from the two written contracts in question, containing the “conditious-precedent” in italics.
    
    
      Contract of Piper and Laflin.
    
    “First, the said Piper and Laflin agree to transport from the depotor storehouse of the Atchison, Topeka and Santa Fé Railroad, at Wichita, Hans., or from such other point on the lineofthe said railroad as may be designated by the said party of the first part, to the Upper Arkansas, Wichita, and Kiowa Indian agencies, in the Indian Territory, and to such other points in the Indian Territory as may be required by the said superintendent of Indian affairs, all the goods, subsistence stores, merchandise, and freights purchased by the Indian Department for the public service during the fiscal year commencing the 1st day of 7th month, (July,) A. D. 1873, and transported over said Atchison, Topeka and Santa Fé Railroad, under contract with M. L. Sargent, general freight-agent thereof, of even date herewith; and estimated at eight hundred tons, more or less.”
    
    
      Contract of the. Atchison, Topeka and Santa Fé Railroad, by M. L. Sargent.
    
    
      “ That the said Enoch Hoag, superintendent of Indian affairs, for and in behalf of the United States of America, and the said M. L. Sargent for and on behalf of the said Atchison, Topeka and Santa Fé Eailroad, have mutually agreed, and by these presents do mutually agree, to and with each other as follows, to wit: First, that the said Atchison, Topeka and Santa Fé Eail-road will transport from Saint Louis, Mo., Kansas City, Mo., and from Leavenworth, Atchison, and Lawrence, Kans., all the goods and supplies purchased by the Indian Department for the public service in the Kiowa, Wichita, and Upper Arkansas agencies, and, if required by said party of the first part, any other freight designed for the public service in the Indian Territory, and deliver the same in good condition at Wichita, Kans., promptly receiving at the points designated, and delivering the same without unnecessary delay to the order of the said party of the first part, and holding thes ame in store, free of charge, until called for. This contract being for the goods and supplies, stores and freights purchased-by the Indian Department for the public service, and requiring transportation over said road during the year commencin gon the 1st day of 7th month, (July,) 1873, and ending 30th of 6th month, (June,) 1874.”
   Drake, Oh. J.,

delivered the opinion of the court:

The claimants seem to have been under the impression that they were entitled to the transportation from Wichita, Kansas, of all the supplies which the Government might purchase in the year 1873-74 for the Kiowa, Wichita, and Upper Arkansas agencies, under the advertisement of ^March 20, 1873. This is a mistaken view of the contract.- By its terms the claimants were entitled to the transportation of goods, &c., purchased by the Indian Department for the public service, and transported over the Atchison, Topeka and Santa Fé Eailroad', under contract with M. L. Sargent, general freight-agent thereof, of even date with the contract of the claimants.

To entitle the claimants to transport goods, &c., from Wichita to those agencies, the goods should have come to Wichita on that railroad; and there was no evidence of that fact; and therefore no ground for a recovery of damages for failing to give the transportation to the claimants.

The claimants’ petition must be dismissed.

Peck, J., was absent when this case was heard, and took no part in the decision.  