1. In a contract made for the transportation of military
supplies and stores in the Western country, and in the presence of
actual war, between the military department of the government and a
private party, the terms "posts, depots, and stations" are to be
taken in their military sense, and not in the sense of railway
posts, depots, and stations.
2. When such a contract speaks of military posts or depots on
the west bank of a river, posts, one of which is 92 miles west of
the river, and another 132 miles, and a third 191 miles, cannot be
considered as within the designation.
Caldwell sued the United States to recover damages for the
breach of a transportation contract dated March 12, 1866, the
government then being at war with Western Indians. The articles on
which the points in dispute arose were thus:
"ARTICLE I. The said 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 Forts Leavenworth and Riley, in Kansas; at Fort
Kearney, Nebraska Territory; Fort Sedgwick, Colorado Territory;
Fort Laramie, Dakota Territory; 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, all such military stores and supplies as may be offered to
him for transportation . . . by the officer of the quartermaster's
department, at any or all of the above points or places, and
transport the same with dispatch, and deliver them . . . to the
officer of the quartermaster's department on duty at any of the
posts or
depots which are
now or may be
hereafter established in the Territory of Colorado north of 40
degrees north, and at Denver City, and in the Territories of
Nebraska, Dakota, Idaho, and Utah, south of latitude 44 degrees
north, including Fort Reno, and east of longitude 114 degrees west
of Greenwich."
"ARTICLE II. The said Caldwell agrees . . . to transport
under
Page 86 U. S. 265
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 of military stores and supplies, from and between 100,000
lbs. and 10,000,000 lbs. in the aggregate."
"ARTICLE XI. The said Caldwell 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,
during the year 1866,
provided the weight of such military stores and supplies shall not
exceed, in the aggregate, 10,000,000 lbs.; yet nothing herein shall
be so construed as to forbid or prevent the United States from
using its own means of transportation for such service, whenever it
may be deemed advisable to do so."
The case, as found by the Court of Claims, was thus:
At the date of the contract the only military posts ON the west
bank of the Missouri River, within the said district, were Fort
Leavenworth, in Kansas, and Omaha, in Nebraska territory.
On or before the 30th day of March, 1866, the president of the
Union Pacific Railroad advised the Quartermaster General that the
company had sixty miles of their line completed west of Omaha, and
that the company expected to complete the first hundred miles by
the 10th of June.
In the summer and autumn of 1866 the railroad company had
extended their line westward to Columbus, Lone Tree, and Kearney's
Station, and it offered to the United States a more expeditious and
cheaper mode of transportation than wagon transportation.
In the summer of 1866, the United States had collected at Omaha
military stores and supplies, intended for the supply of posts west
of the Missouri River, and within the district covered by the
contract with Caldwell, and in the year 1866, they sent by the said
railroad quantities of the said stores and supplies from Omaha to
Columbus, Lone Tree, and Kearney's Station, the successive termini
of the railroad as it was extended westward.
In the month of June, 1866, the United States contracted
Page 86 U. S. 266
with one Kountze for the transportation of the said stores and
supplies from Columbus, Lone Tree, and Kearney's Station to Fort
McPherson, Fort Laramie, and Fort Kearney, and Kountze, under the
said contract, and in the year 1866, performed the transportation;
that is to say, from April to September, 1866, he transported
2,945,484 lbs., and in October transported 693,964 lbs.
Previous to the delivery of the said military stores and
supplies to the railroad company, and before the making of the said
contracts with Kountze, Caldwell was prepared, and gave notice to
the United States of his readiness to transport them, under and
according to his contract.
Previous to the delivery of the stores and supplies to Koutze,
but after the making of the said contracts with him, Caldwell was
prepared and claimed of the United States the right, under his
contract, to transport them from the termini of said railroad to
such places, within his contract, as the United States might
designate.
No notice was given by the United States to Caldwell, under his
contract, to transport the military stores and supplies transported
by said Kountze. But on the 11th of June, 1866, he received notice
from the United States that transportation, under his contract,
would not be needed.
The cost of the transportation of the said stores and supplies
delivered to Kountze in any of the months from April to September,
inclusive, would have been to Caldwell $1.45 per 100 lbs. per
hundred miles.
The Court of Claims, holding that the expression "posts and
depots ON the west bank of the Missouri River," &c., was not
confined to posts and depots "on the waterline of the river," but
was used "merely to denote the most easterly line of the district
covered by the contract," and that the terms "posts, depots, or
stations" did not, of necessity, mean
military posts,
depots, or stations, awarded to Caldwell $35,689.01, as damages for
the failure to deliver 2,945,484 lbs. of supplies, which were
transported from Omaha to Columbus, to Lone Tree, and to Kearney
Station by rail, and thence to Fort McPherson, Fort Laramie, and
Fort
Page 86 U. S. 267
Reno by wagon, between the months of April and September, 1866.
But holding that the clause in Article XI, by which it was agreed
that Caldwell should transport all the military stores and supplies
for which the quartermaster's department might require wagon
transportation &c., "during the year 1866," was only a
provision for additional transportation that might be required in
other months than those from April to September, previously
specified, and under another contract than this to be made, the
court limited the recovery to transportation during the months from
April to September, 1866, inclusive, and refused to allow damages
for the failure to deliver for transportation the supplies which
were carried in October, 1866. The United States appealed from the
first branch of the judgment, and Caldwell from the latter
part.
MR. JUSTICE HUNT delivered the opinion of the Court.
In the view we have taken of the case, it is unnecessary to
consider a question largely discussed in the court below, and in
the briefs of counsel here, to-wit, whether the contract, although
not in terms containing a stipulation binding the United States to
deliver to the claimant all the stores and supplies it desired to
transport between the points mentioned, was to be construed as
having that effect. Our decision of the case rests upon other
grounds, which are reached upon the assumption that the claimant is
right in his construction of the contract, in that respect, but do
not at all depend upon it.
By the second article of the contract of Caldwell, the claimant,
he undertakes to transport "from the posts, depots, or stations
named in Article I," or from "any other posts, depots, or stations
that may be established" on the west bank of the Missouri River,
any number of pounds of supplies not exceeding 10,000,000 lbs. in
the aggregate. The posts named in Article I are, Forts Leavenworth
and Riley,
Page 86 U. S. 268
in Kansas; Fort Kearney, Nebraska; Fort Sedgwick, Colorado; Fort
Laramie, Dakota. The district named in said article within which
other posts may be established is, the west bank of the Missouri
River, north of Leavenworth and south of 42 degrees north
latitude.
The posts from which the supplies were sent, which, it is said,
should have been delivered to the claimant, were not those named in
Article I, or either of them. They were Omaha at the outset, or
starting point, and Columbus, Lone Tree, and Kearney Station (not
Fort Kearney), as the intermediate points from which wagon
transportation was taken. These three points were railroad stations
on the Union Pacific Railroad, and they were points to which the
road was, from time to time, sufficiently completed for the
purposes of railroad travel or transportation.
The judgment of the Court of Claims is based upon the theory
that the expression in the contract, "posts, depots, or stations,"
includes railway depots or stations; that when a depot or station
was established upon the Pacific road, as its construction advanced
westwardly, such point became a post or station within the meaning
of the contract. We are of the opinion that this was not the
intention of the parties, but that military posts or stations alone
were intended by them.
The contract was intended to aid the government in the transfer
of its stores and supplies from one military post, station, or
depot to another. While the same words in a contract, the subject
matter of which respected goods to be transported for individuals,
and in time of peace, might be construed as claimed, such is not
their fair and natural meaning in the contract we are considering.
The term "post," in this instrument, means a military establishment
where a body of troops is permanently fixed; "station" means a
place or department where a military duty is to be discharged, or
the synonym of "depot," a place where military stores or supplies
are kept, or troops assembled. To apply them otherwise would, we
think, be giving a forced construction to language used in the
presence of actual war,
Page 86 U. S. 269
in reference to military stores, and in reference to their
transportation from one military position to another, as the
necessities of the army should require.
Columbus, Lone Tree, and Kearney are not "on the west bank of
the Missouri River," and the contract limits the other posts,
stations, or depots that may be established to that locality. The
record shows that from Omaha to Columbus is ninety-two miles, to
Lone Tree is one hundred and thirty-two miles, and to Kearney
Station is one hundred and ninety-one miles, and there is no
evidence that the Missouri River is, at any other point, nearer to
the places named than is thus indicated. It would be quite a
latitudinarian construction that would hold that these places are
"on the Missouri River." The specifications of the points of
departure are minutely described in Article I, and cannot be
enlarged by the looser language used in Article III, where another
subject is provided for, and the points of departure are mentioned
in an incidental manner only.
The supplies now under consideration, it will be observed, were
shipped from Omaha as the first or original point of departure.
Omaha is situated on the west bank of the Missouri River, and was a
station, or depot, where military stores and supplies were
collected, and where troops were assembled at the time the
claimant's contract was made. It is nevertheless not a point from
which the supplies that were to be forwarded, were by the contract
to be delivered to the claimant. Those points were the places
named, to-wit: Forts Leavenworth, Riley, Kearney, Sedgwick, and
Laramie; the station, or depot, of Omaha not being named. Nor can
it come under the words "at such 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," as it was a
post, or depot, established long before the making of the contract,
and was in full operation as a post or station when the contract
was made.
The reason for this careful omission of Omaha, both from the
expressed points of departure and those afterwards to be formed, is
found in the fact that it was the eastern terminus
Page 86 U. S. 270
of the Union Pacific Railroad. The building of this road was
then going on. It was well known to the United States authorities
that it would be rapidly extended westwardly, and that it would be
a speedy and cheap means of transporting its supplies. The contract
with the claimant required the supplies to be transported at the
rate of ten miles a day with mule trains and fourteen miles a day
with ox trains, and at the expense of $1.45 per 100 lbs. for every
hundred miles. The train upon the railroad would carry the supplies
the same distance in an hour, and the expense would be diminished
nearly as much as the speed would be increased. All this was well
known to both parties. Hence, when the road was completed to
Columbus, it was used by the government for that distance, and when
successively completed to Lone Tree and Kearney, it was used to
those places. That the United States under such circumstances
intended to deprive itself of the power to use this new and more
useful mode of transportation can scarcely be credited. It has not
done so in terms, and, we think, that there is no fair reason to
suppose that it has done so by implication.
The whole matter results in this: the government is responsible
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 claimant 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, and there is no liability in
damages.
The judgment awarding damages in the sum of $35,689.01 is
reversed and the case is remitted to the Court of Claims, with
directions to dismiss the petition.
