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WILLIAM A. BRADLEY, PLAINTIFF IN ERROR, v. THE WASHINGTON

January 1, 1839

WILLIAM A. BRADLEY, PLAINTIFF IN ERROR,
v.
THE WASHINGTON, ALEXANDRIA, AND GEORGETOWN STEAM PACKET COMPANY, DEFENDANTS IN ERROR.



ERROR to the Circuit Court of the United States for Washington County, in the District of Columbia. This was an action on the case, brought in the Circuit Court, on the 24th December 1834, by the defendants in error. The claim of the plaintiffs was for two thousand seven hundred and sixty-five dollars, alleged to be due on the 7th day of February, 1832, for the hire of the steamboat Franklin, before that time let and delivered by the plaintiffs to the defendant, now the plaintiff in error. The cause was tried in 1838, and the jury, under the directions of the Court, found a verdict for the plaintiffs. The defendant tendered a bill of exceptions to the opinion of the Court, on the matters in controversy, which was duly signed and sealed. The Court entered a judgment for the plaintiffs, according to the verdict; and the defendant prosecuted this writ of error. The bill of exceptions stated, that the plaintiffs gave in evidence and read to the jury the following paper, dated 19th November, 1831, signed by William A. Bradley, as follows: 'I agree to hire the steamboat Franklin, until the Sydney is placed on the route, to commence to-morrow, 20th instant at ($35) thirty-five dollars per day, clear of all expenses, other than the wages of Captain Nevitt. W. A. BRADLEY. '19th Nov. 1831.''On the part of the Washington, Alexandria, and Georgetown Steam Packet Company, I agree to the terms offered by William A. Bradley, Esqr. for the use of the steamboat Franklin, until the Sydney is placed on the route to Potomac creek; which is thirty-five dollars per day, clear of all expenses, other than the wages of Capt. Nevitt, which are to be paid by our company. 'W. GUNTON, President. 'Washington City, Nov. 19th, 1831.' 'PISHEY THOMPSON, Esqr. 'Washington City, Dec. 5th, 1831. DEAR SIR–I will thank you to advise the president and directors of Washington, Alexandria, and Georgetown Steam Packet Company, that, the navigation of the Potomac being closed by ice, we have this day commenced carrying the mail by land, under our winter arrangement; and have therefore no further occasion for the steamboat Franklin, which is now in Alexandria in charge of Capt. Nevitt. The balance due your company, for the use of the Franklin, under my contract with Dr. Gunton, will be paid on the presentation of a bill and receipt therefor. With great respect, Your obedient servant, W. A. BRADLEY. 'PISHEY THOMPSON, Esqr. Present.' In reply to this letter the president of the Steam Packet Company wrote to the defendant as follows:–– 'Washington, Dec. 6th, 1831. 'SIR–Your letter of the 5th instant to Mr. Pishey Thompson, has been this afternoon submitted to the board of directors of the Washington, Alexandria, and Georgetown Steam Packet Company, at a meeting holden for the purpose. After mentioning that the navigation of the Potomac is closed by ice, and that you had commenced carrying the mail by land, under your winter arrangement, you have therein signified you have no further occasion for the steamboat Franklin, and that she was then in Alexandria in charge of Captain Nevitt. 'The agreement entered into by you, contains no clause making its continuance to depend on the matters you have designated; but, on the contrary, an unconditional stipulation to 'hire the Franklin until the Sydney is placed on the route:' and I am instructed to inform you that the board cannot admit your right to terminate the agreement on such grounds, and regard it as being still in full force, and the boat as being in your charge. 'However disposed the board might have been to concur with you in putting an end to the agreement, under the circumstances you have described, if the company had not been already in litigation with you and your colleague, for the recovery of a compensation for the use of the Franklin under another contract, to the strict letter of which a rigid adherence is contended for on your part, notwithstanding it had undergone a verbal modification; the board could not but recollect this, and be influenced thereby, Yours, respectfully, 'WM. A. BRADLEY, Esq.' W. GUNTON, President.' The plaintiffs also proved that the steamboat Sydney was in Baltimore in November, 1831, and continued there until the 26th of January, 1832; and that she left there and arrived in the Potomac, and was put 'on the route' to Potomac Creek on the 6th of February of that year. She had not been able to start from Baltimore until the 25th January, 1832. The plaintiffs claimed the hire of the Franklin from the 20th of November, 1831, to the 6th day of Marcy, 1832, at thirty-five dollars per day. The defendant, to support the issue on his part, offered to prove, by competent witnesses, that for several years immediately preceding the date of the contract, he had been, and was still, contractor for the transportation of the United States mail from Washington to Fredericksburg; that the customary route of said mail was by steamboat from Washington to Potomac Creek, thence by land to Fredericksburg, in which steamboat passengers were also usually transported on said route; that during all that time the defendant had used a steamboat belonging to himself on said route; that he also kept an establishment of horses and stages for the transportation of said mail all the way by land from Washington to Fredericksburg, at seasons when the navigation of steamboats was stopped by ice; and had been obliged, for a considerable portion of every winter during the time he had been so employed in the transportation of the mail, to use his said stages and horses for the transportation of the mails all the way by land to Fredericksburg; in the mean time laying up his steamboat. That just before the date of said contract, the defendant's own steamboat, usually employed as aforesaid on said route, had been disabled, and the defendant was at the time about completing a new boat, called the Sydney; which had been built at Washington, and sent round to Baltimore for the purpose of being fitted with her engine and other equipments necessary to complete her for running on said route; and that she lay at Baltimore, in the hands of the workmen there, at the date of said contract; that on the morning of the 5th day of December, 1831, Captain Nevitt, the commander of the said steamboat Franklin, refused to go on the said route of the defendants to Fredericksburg, in consequence of the ice then forming in the river, unless he was directed to do so by the plaintiffs; that application was then made to Doctor Gunton, the president of the company, and he directed the said captain to proceed as required, and obey the orders of the defendant; that the said captain did then proceed on the said route, and returned as far as Alexandria, where he stopped, and sent up the mail by land; and, although required to do so by the agent of the said defendant, he refused to come up to the city of Washington with the boat, in consequence of the ice which had formed in the river; and that said boat lay at Alexandria, frozen up in the harbour, from that time till the 5th February, 1832; that at the same time the navigation of the Potomac river became obstructed as aforesaid, the navigation at and from Baltimore became also obstructed from the same cause, and the said steamboat Sydney was also frozen up in the basin at Baltimore, before she had been completely equipped with her engine; that at the time she was frozen up, she wanted nothing to complete her equipment but the insertion of two pipes, a part of her engine, which pipes had been made, but not then put in place, the completing of which would not have required more than two days, and the boat would have been in complete order for being sent round to Washington, and put upon said route; but the ice having interposed, it was deemed by the workmen, and those in charge of the boat, that the insertion of said pipes ought to be postponed till the navigation was clear; that in January, 1832, the said pipes were inserted, and the said boat being completely equipped for her voyage, left Baltimore for Washington, as soon as the state of the ice made it practicable to attempt that voyage; was again stopped by the ice, and obliged to put in at Annapolis, whence she proceeded to Washington as soon as the ice left it practicable to recommence and accomplish the voyage, and arrived at Washington on the 6th February, 1832, and was, the next day, placed by defendant on said route; that during the whole of the period from the first stopping of the navigation as aforesaid, until the said 6th February, the defendant had abandoned the said route to Potomac creck, and prosecuted the land route from Washington to Fredericksburg. 2. That it was known to and understood by plaintiffs, at the time the contract in question was made, and was a matter of notoriety, that as soon as the navigation should be closed by ice, the United States mail from Washington to Fredericksburg would have to be transported all the way by land carriage, instead of being transported by steamboat to Potomac creek, and thence by land to Fredericksburg; and that the said steamboat Franklin would not be required by defendant, and could not be used under said contract when the navigation should be closed. 3. That it was communicated to the plaintiffs by defendant, or his agent, before the time of making said contract, that the defendant intended to keep said steamboat in use under said contract, so long as the navigation remained open, and no longer. To the admissibility of which evidence the said plaintiffs by their counsel objected, and the Court refused to permit the same to go to the jury; but, at the instance of plaintiffs, gave the following instruction, viz.:–– That if the jury shall believe, from the evidence aforesaid, that the said defendant did, on the 19th day of November, 1831, write to said plaintiffs the said paper of that date, bearing his signature, and that said plaintiff did accept the same by the said paper of the same date, and that said defendant and plaintiffs did respectively write to each other the papers bearing date the 5th and 6th of December, 1831, and that the said steamboat Sydney did in fact first arrive in the Potomac river on the 6th February, 1832, and was placed on the route to Potomac creek, mentioned in the said evidence, on the 7th February, 1832; that then the said plaintiffs are entitled to recover, under said contract so proved as aforesaid, at the rate of thirty-five dollars per diem, from the said 20th November, 1831, to the said 6th of February, 1832, both inclusive. To which refusal, by the Court aforesaid, to admit the evidence so offered by the said defendant, as also to the granting by the Court of the said instruction aforesaid, so prayed for by the said plaintiffs, the said defendant by his counsel excepted. The case was argued by Mr. I. H. Bradley and Mr. Jones, for the plaintiff in error; and by Coxe for the defendants. The counsel for the plaintiff in error maintained that the evidence offered on his part, and rejected by the Circuit Court, ought to have been admitted, and that it imported a full defence to the action; and that the terms of the instruction from the Court to the jury were in other respects erroneous and untenable, upon the data assumed in the instruction itself. The hiring of the Franklin was from day to day. The contract was made under the known circumstances of the case; and was so understood by all the parties to it. The purpose for which the boat was hired was to convey the mail, for the conveyance of which the plaintiff in error was the contractor; and it had reference to two circumstances, viz.: one expressed, that the Sydney should be in a condition to be placed on the route, for which it was known she was preparing; the other, equally well understood, that the interruption and prevention of the running of the steamboat, by the ice in the Potomac, would oblige the contractor to convey the mail by land; in which case, as the boat could no longer be used, the hiring would cease. The evidence offered by the plaintiff in error, was to explain, not to contradict the written contract. It was to show what the route for which the boat was employed was; and that the plaintiff could only use the boat while the river was navigable. It was to show that after the river was closed, the mail was transported by land. Such evidence is admissible by the rules of law. Cited 1 Mason's Rep. 10. 4 Campbell's Nisi Prius. 8 Term Rep. 379. 382. 3 Dall. Rep. 415. 5 Wheat. 326. 8 Johns. Rep. 116. 19 Johns. Rep. 313. 2 Barn. and Ald. 17. 11 East, 212. 2 Bos. and Pull. 503. 10 East, 555. 2 Camp. 627. According to reason, and analogous cases, there can be no doubt of the propriety and legality of the evidence. We are to look at the terms of the contract, and to the usage of the business in which the Franklin was to be employed. She was to be used in carrying the mail; and it must have been known that when she could no longer carry the mail, she would not be employed. The prevention by causes not within the control of either party, would excuse both, from the performance of the contract. He who hires, is to have the enjoyment and use of the thing hired. If the hiring is for a specific purpose, the purpose must be accomplished. In this case the hiring was for a public, notorious purpose; and it was well known and well understood, that on certain events occurring, the Franklin would be no longer employed. Was it an engagement which was to depend for its determination solely on the Sydney's being placed on the route. This would have compelled the plaintiff in error to pay for the Franklin to the end of time, if the Sydney had been burned, or had not been capable of proceeding on the route. The length to which this position would extend proves its error. Coxe, for the defendants in error, contended, that the engagement to hire the Franklin, was to continue until the happening of a particular event; until the Sydney should be fit to take her place on the route. The suspension of the performance of the boat, could be but temporary; and this was one of the contingencies to which the plaintiff in error had subjected himself by the contract. There is nothing to distinguish this case from the case where an embargo has interposed to suspend the voyage of a ship. The evidence was properly excluded. The contract was express, plain, and simple; and did not require the testimony. No difficulty existed as to the meaning of the terms used in the agreement. 'The reute,' was well understood. It was not a mail route only, but it was used by the plaintiff in error for the conveyance of passengers; and this was one of the objects of the contract. It was on these principles the Circuit Court proceeded in the case.

The opinion of the court was delivered by: Mr. Justice Barbour delivered the opinion of the Court.––

This case is brought before us by a writ of error to a judgment of the Circuit Court of the District of Columbia, for the county of Washington.

It was an action of assumpsit, brought by the defendants in error, against the plaintiff in error, to recover a sum claimed for the hire of the steamboat Franklin.

The claim was founded upon a written contract, concluded between the parties, by the following correspondence:–On the 19th of November, 1831, the plaintiff in error wrote to the defendants in error, a note, of which the following is a copy: 'I agree to hire the steamboat Franklin until the Sydney is placed on the route, to commence to-morrow, 20th instant, at ($35) thirty-five dollars per day, clear of all expenses other than the wages of Captain Nevitt. W. A. Bradley.'

To this note, W. Gunton, as president of the company, replied on the same day, in the following words: 'On the part of the Washington, Alexandria, and Georgetown Steam Packet Company, I agree to the terms offered by William A. Bradley, Esq., for the use of the steam boat Franklin, until the Sydney is placed on the route to Potomac creek, which is thirty-five dollars per day, clear of all expenses, other than the wages of Captain Nevitt, which are to be paid by our company.'

Upon the trial of the cause, on issue joined, upon the plea of non assumpsit, a bill of exceptions was taken by the defendant; from which it appears that the plaintiffs in the Court below, having given in evidence the correspondence already stated, further gave in evidence, a note, signed by William A. Bradley, dated December the 5th, 1831, addressed to Pishey Thompson, requesting him to advise the president and directors of the Steam Packet Company, that the navigation of the Potomac being closed by ice, they had that day commenced carrying the mail by land, under their winter arrangement, and had, therefore, no further occasion for the steamboat Franklin, which was then in Alexandria, in charge of Captain Nevitt; and offering to pay the balance due for the use of the Franklin, on the presentation of a bill, and receipt therefor; and also a letter from W. Gunton, addressed to Wm. A. Bradley, dated the 6th December, 1831, in which, after stating that the letter of the fifth, from Bradley to Thompson, had been submitted to the board of directors of the company, he informed him, that the board could not admit his right to terminate his agreement, on the grounds which he had stated in his note to Thompson; and that they regarded it as being still in full force, and the boat as being in his charge. The plaintiff also proved, that the steamboat Sydney was not placed on the route until the 7th of February, 1832; that the Sydney belonged to the defendant, and that she was not finished so as to be able to start from Baltimore, until the 25th of January. And thereupon, the plaintiffs claimed the hire of the steamboat Franklin from the 20th of November, 1831, to the 6th of February, 1832, seventy-nine days, at thirty-five dollars per day; allowing credit for three hundred and fifty dollars, paid by the defendant, and leaving a balance of $2,415.

It appears from the bill of exceptions, that after the plaintiff had closed his evidence, the defendant, amongst other things, offered to prove, that he for several years had been, and then was, contractor for the transportation of the mail, from Washington to Fredericksburg; that the customary route of said mail was by steamboat from Washington to the Potomac creek, thence by land to Fredericksburg, and that passengers were also transported on that route; that he kept an establishment of horses and stages, for the transportation of the said mail all the way by land from Washington to Fredericksburg, at seasons when the navigation of steamboats was stopped by ice; and had been obliged for a considerable portion of every winter, during the time he had been so employed in the transportation of the mail, to use his said stages and horses, for the transportation of the mail, all the way by land to Fredericksburg, in the mean time laying up his steamboat; that just before the date of the contract, the defendant's own steamboat, usually employed on said route, had been disabled, and the defendant was at the time, about completing a new boat called the Sydney, which had been built at Washington, and sent round to Baltimore for the purpose of being fitted with her engine and other equipments; that in January, 1832, the Sydney, being completely equipped, left Baltimore for Washington, as soon as the state of the ice made it practicable to attempt the voyage, was stopped by ice, and obliged to put in at Annapolis, whence she proceeded to Washington, as soon as the ice left it practicable; arrived at Washington on the 6th of February, 1832, and was on the next day placed by defendant on the route; that on the 5th of December, 1831, Captain Nevitt, the commander of the Franklin, refused to go on the said route of the defendant, in consequence of the ice then forming in the river, unless he was directed to do so by the plaintiffs; that upon application to the president of the company, he directed the captain to proceed as required, and obey the orders of the defendant; that the captain did then proceed on the route, and returned as far as Alexandria, where he stopped, and sent up the mail by land, and although required by defendant's agent, refused to come up to Washington with the said boat, in consequence of the ice which had formed in the river; and that the said boat lay at Alexandria, frozen up in the harbor, from that time to the 5th of February, 1832; that it was matter of notoriety, and known to and understood by the plaintiffs, at the time the contract in question was made, that as soon as the navigation should be closed by the ice, the United States mail from Washington to Fredericksburg would have to be transported all the way by land carriage, instead of being transported by steamboat to Potomac creek, and thence by land to Fredericksburg; and that the steamboat Franklin would not be required by defendant, and could not be used under said contract, when the navigation should be closed.

The Court refused to permit the evidence thus offered by the defendant to go to the jury. And then, on the motion of the plaintiffs, instructed the jury, that if they believed from the evidence, that the defendant wrote to the plaintiffs the paper of the 19th November, 1831, and that the plaintiff accepted the offer, by the same date, and that plaintiffs and defendant respectively wrote to each other the papers bearing date the 5th and 6th December, 1831, and that the steamboat Sydney did in fact first arrive in the river Potomac on the 6th February, 1832, and was placed on the route to Potomac creek, on the 7th of February, 1832, that then the plaintiffs were entitled to recover, under the contract so proved, at the rate of thirty-five dollars per diem, from the 20th of November, 1831, to the 6th of February, 1832, both inclusive.

The questions then arising upon this record, are: first, whether the Court erred in refusing to permit the evidence offered by the defendant to go to the jury? And, secondly, whether they erred in giving the instruction to the jury which they did give, at the instance of the plaintiffs? As to the first question. It is a principle recognised and acted upon by all Courts of justice, as a cardinal rule in the construction of all contracts, that the intention of the parties is to be inquired into; and if not forbidden by law, is to be effectuated. But the law has laid down certain rules, declaring by what kind of proof in any given case this intention is to be ascertained.

Amongst these rules, a leading one in relation to written contracts, to which class the one in question belongs, is this: That extrinsic evidence is not admissible to explain a patent ambiguity; that is, one apparent on the face of the instrument: but that it is admissible to explain a latent ambiguity; that is, one not apparent on the face of the instrument, but one arising from extrinsic evidence; for this is but to remove the ambiguity by the same kind of evidence as that by which it is created. The rule thus stated seems to be in itself quite plain and intelligible, and yet much difficulty has arisen in its application. The illustration most usually given of the operation of this rule in the admission of extrinsic evidence, is that of a description of a devisee, or of an estate, in a will, where it turns out that there are two persons, or two estates, of the same name and description. These, however, are put, not as measuring the extent of the rule, but as exemplifying its application; and all other cases within the scope of the principle are, in like manner, open to explanation, by the same kind of evidence.

Accordingly it is laid down, in a very accurate writer on the subject of evidence, 3 Starkie, 1021, that extrinsic parol evidence is admissible to give effect to a written instrument, by applying it to its proper subject matter.

Let us examine some of the many cases which have been decided upon the subject of the admissibility of this evidence, in relation to written instruments.

In the first place, wherever there is a doubt as to the extent of the subject devised by will, or demised, or sold, it is matter of extrinsic evidence to show what is included under the description, as parcel of it. Accordingly, in 1 Term Rep. 701, Buller, Judge, said, whether parcel or not, of the thing demised, is always matter of evidence. So where a grantor in a deed described the premises, as the farm on which he then dwelt, this was held to be a latent ambiguity, which might be explained by evidence aliunde; and evidence was admitted, that a particular piece of land, claimed under the deed, was at the time of the grant in a state of nature, unenclosed, and separate from the rest of the farm, and that the grantor remained in possession, and occupied it as his own till his death–to show that it was not within the grant. 4 Dav's Rep. 265.

In 8 John. 116, the case was this: A, by a written contract, agreed to receive of B sixty shares of the Hudson Bank, on which ten dollars per share had been paid, and to deliver B his note for $667, and pay him the balance in cash, and also to pay five per cent. advance. It was decided that this was a case of latent ambiguity, and the nominal value of each share being fifty dollars, parol evidence was admitted, to ...


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