Kihlberg v. United States , 24 L. Ed. 1106 ( 1878 )

97 U.S. 398 (____)

KIHLBERG
v.
UNITED STATES.

Supreme Court of United States.

Mr. Harvey Spalding for the appellant.

The Solicitor-General, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

The contract which is the foundation of this action provides that transportation shall be paid "in all cases according to the distance from the place of departure to that of delivery." But no specific rule is prescribed for the ascertainment of distances. The contract is silent as to whether they shall be estimated by an air line, or by the route usually travelled by contractors in conveying government stores, or by the road over which troops ordinarily marched when going from one post or station to another. The parties, however, concurred in designating a particular person — the chief quartermaster of the district of New Mexico — with power not simply to ascertain, but to fix, the distances which should govern in the settlement of the contractor's accounts for transportation. The written order of General Easton to the depot quartermaster at Fort Leavenworth was an exertion of that power. He discharged a duty imposed upon him by the mutual assent of the parties. The terms by which the power was conferred and the duty imposed are clear and precise, leaving no room for doubt as to the intention of the contracting parties. They seem to be susceptible of no other interpretation than that the action of the chief quartermaster, in the matter of distances, was intended to be conclusive. There is neither allegation nor proof of fraud or bad faith upon his part. The difference between his estimate of distances and the distances by air line, or by the road usually travelled, is not so material as to justify the inference that he did not exercise the authority given him with an honest purpose to carry out the real intention of the parties, as collected from their agreement. His action cannot, therefore, be subjected to the revisory power of the courts without doing violence to the plain words of the contract. Indeed, it is not at all certain that the government would have given its assent to any contract which did not confer upon one of its officers the authority in question. If the contract had not provided distinctly, and in advance of any services performed under it, for the ascertainment of distances upon which transportation was to be paid, disputes might have constantly arisen between the contractor and the government, resulting in vexatious and expensive and, to the contractor oftentimes, ruinous litigation. Hence the provision we have been considering. Be this supposition as it may, it is sufficient that the parties expressly agreed that distances should be ascertained and fixed by the chief quartermaster, and in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government. The contract being free from ambiguity, no exposition is allowable contrary to the express words of the instrument.

The tabular statement of rates appended to the contract, and attested by the signatures of the parties, shows that the appellant was to be paid for the transportation of supplies by the pound. The appellant claims that he was entitled to compensation according to the number of pounds received for transportation, in all cases where the loss in weight, occurring during transportation, was without neglect upon his part. The government contends that the quantity delivered determined the amount of compensation. We are of opinion that the latter is the better construction of the contract. By the fifth article of the agreement, it is made the duty of the quartermaster, at the place of delivery, to give to the contractor receipts on the bill of lading "for the full quantity of stores that shall be delivered, and, upon such receipts, payment shall be made." By the eighth article, provision is made for a board of survey, if requested by the contractor, "to examine the quantity and condition of stores transported, and in cases of loss, deficiency, or damage, to investigate the facts, report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractor, or to causes beyond his control; and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall govern the payments to be made on it." The previous article makes it the duty of the quartermaster at the point of delivery to "indorse the bill of lading, in accordance with the finding of a board of survey, ... stating the quantity and condition of stores delivered; upon which indorsement payment shall be made as per contract," deducting the value of articles missing, lost, destroyed, or damaged, by neglect of the contractor, if the board of survey has found that there was such neglect. The contract further exempts the appellant from responsibility for loss of weight due to shrinkage, and for leakage of liquids, where the same has not occurred from his neglect. These provisions, taken together, show that while the contractor is not to be charged for the value of any loss, deficiency, or damage which, without his fault, occurred during transportation, the government agreed to pay him transportation at a fixed rate per pound, according to the weight of supplies when delivered at the place of destination. There are other portions of the contract, not referred to in the briefs of counsel, which seem to fortify this conclusion. In the eighth article, after providing that the contractor shall pay double the cost at the point of departure of articles in reference to which there was "a loss, deficiency, or damage," attributable to him, the contract declares: "and no freight whatever shall be paid on stores deficient." If in the progress of transportation the stores were reduced in weight, by reason of shrinkage or leakage, there would seem to be a deficiency in stores, within the meaning of the contract, for which deficiency no freight could be charged. The contractor took care to guard against responsibility for loss of weight, arising from causes beyond his control, but failed to stipulate for payment of transportation beyond the quantity or weight of supplies at the place of destination. The language employed indicates an understanding between the parties that the payment of transportation was to be regulated by the weight actually delivered, not by the weight received for delivery.

The views expressed lead to an affirmance of the judgment; and it is

So ordered.