US SUPREME COURT DECISIONS

The plaintiff in error had, by an agreement in writing, hired a steamboat to be put "on the route" from Washington, in the District of Columbia, to Potomac Creek until another steamboat then building should be prepared and be put "on the route." The plaintiff in error was the contractor for carrying the mail of the United States, which was carried in a steamboat to Potomac Creek, except in winter, when the navigation of the River Potomac was interrupted by ice, when the mail was carried by land. The steamboat so hired was employed in carrying the mail. The ice prevented the use of the steamboat, and the owners claimed under the contract the hire of the boat during the time her

employment was thus interrupted. The circuit court refused to allow parol evidence to be given to show the purpose for which the steamboat was employed, and to explain the meaning of the terms used in the contract, and of other matters conducing to show the meaning of the contract. The court held that the evidence was admissible.

It is a principle recognized and acted upon as a cardinal rule by all courts of justice in the construction of contracts that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated.

Extrinsic evidence is not admissible to explain a patent ambiguity -- that is, one apparent on the face of the instrument -- but 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; that is but to remove the ambiguity by the same kind of evidence as that by which it is created.

Extrinsic parol evidence is admissible to give effect to a written instrument by applying it to its proper subject matter, by proving the circumstances under which it was made whenever, without the aid of such evidence, the application could not be made in the particular case.

This was an action on the case, brought in the circuit court on 24 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 7 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 19 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 tomorrow, 20th instant at ($35) thirty-five dollars per day, clear of all expenses, other than the wages of Captain Nevitt."

"W. A. BRADLEY."

"19 Nov., 1831 "

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"On the part of the Washington, Alexandria & 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. 19, 1831"

"PISHEY THOMPSON, Esqr. Washington City, Dec. 5, 1831"

"DEAR SIR -- I will thank you to advise the president and directors of Washington, Alexandria & 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. 6, 1831"

"SIR -- Your letter of the 5th instant to Mr. Pushy Thompson has been this afternoon submitted to the board of directors of the Washington, Alexandria & 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

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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 26 January, 1832, and that she left there and arrived in the Potomac, and was put "on the route" to Potomac Creek on 6 February of that year. She had not been able to start from Baltimore until 25 January, 1832. The plaintiffs claimed the hire of the Franklin from 20 November, 1831, to 6 March, 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 meantime 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 5 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 chanrobles.com-red

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the river; and that said boat lay at Alexandria, frozen up in the harbor, from that time till 5 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 6 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 6 February, the defendant had abandoned the said route to Potomac Creek 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 19 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 chanrobles.com-red

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write to each other the papers bearing date 5 and 6 December, 1831, and that the said steamboat Sydney did in fact first arrive in the Potomac River on 6 February, 1832, and was placed on the route to Potomac Creek, mentioned in the said evidence, on 7 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 20 November, 1831, to the said 6 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. chanrobles.com-red

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