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is made by a recital of Burgeon's survey. It is Mr. Justice Wayne delivered the opinion of this survey, also, which the court below decrees the court: in favor of the claimant, and which it is to be This case, like that of The United States v. particularly understood this court affirms. But Andrew Burgevin, is controlled by the decision this court thinks it necessary to sdy further, of this court in the case of The United States in affirming the decree of the court below, re v. Kingsley, 12 Peters, 476. jecting the claim of the petitioner to have The decree of the Superior Court of East fourteen thousand five hundred acres of land | Florida is therefore reversed. surveyed to him, excluding land covered with This cause came on to be heard on the tran. water and marshes, that even though the sur script of the record from the Superior Court for vey had not been made, it would not be com the District of East Florida, and was argued petent to the court below, or to this court, to by counsel; on consideration whereof, it is the designate a new location, varying from the opinion of this court that the petitioner having original concession, as any such alteration on failed to fulfill the condition of the grant, that a concession would be equivalent to a new the said grant or concession is null and void; grant. See the case of the United States v. and that the said petitioner has no right or title Huertas, 9 Peters, 171.

to the land. Whereupon it is now here decreed The acts of Congress by which these cases and ordered by this court that the decree of the are subjected to judicial investigation and judg. said Superior Court in this cause be, and the ment, give no such power to the courts.

same is hereby reversed and annulled; and that

this cause be, and the same is hereby remanded This cause came on to be heard on the tran. to the said Superior Court, with directions to script of the record from the Superior Court enter a decree in conformity to the opinion of for the District of East Florida, and was argued this court by counsel; on consideration whereof, it is ad. judged and decreed by this court that the decree of the said Superior Court in this cause *THE UNITED STATES Appellant, (*85 be, and the same is hereby, in all respects, affirmed.

ANDREW BURGEVIN, Appellee.

Conditional Spanish land grant in Florida 84") "THE UNITED STATES, Appellant,

A grant of land in East Florida, by the Spanish governor, on the condition that a water saw-mill

should be erected on the land, declared void ; the WILLIAM DRUMMOND, Appellee. condition of the grant not bavlog been performed

according to the terms of the grant. Conditional Spanish land grant in Florida.

A concession was made by the Governor of Florida, before Florida was ceded to the United States,

Flurida on condition that the grantee should erect a water Andrew Burgevin, on the 21st day of May, saw-mill, “and with the precise condition, that until he executes the said machinery, the grant to be 1829, presented a petition to the judge of the considered void, and without etrect, until that Superior Court for the District of East Florida, event takes place." The mill was never erected: claiming a tract of land of five miles square, or The court held that the concession gave no title to

sixteen thousand acres, situated in the District the land.

of East Florida, under a title derived from a

grant made to him by the Spanish government, A PPFmidafrom the Superior Court of East on the pebibiodaw.dar edemuary, Andres

The petition addressed by Andrew Burgevin Mr. Grundy, Attorney-General of the United to Governor Coppinger, asked for the grant for States, submitted this case to the court, alleging the purpose of erecting a water saw-mill on the that the claimant relies on a concession made same, with a view not only to remedy the notaby Governor Coppinger for 16,000 acres of ble want of lumber which is felt at that place, land, dated September 12th, 1816. The grant but also to supply the export trade of that artiis upon a condition, namely, the erection of a cle, so much recommended to the government water saw-mill; “and with the precise condi. of Florida by the superior authority of Hation that until he executes said machinery, this grant will be considered as null and void, and The grant was made to Andrew Burgevin, in without effect or value until that event takes consideration of the advantages and benefit place," etc.

which the province would receive from the proThe mill was never erected. No sufficient posed establishment; "with the precise condi. reason is shown for its non-erection.

tion that, until he erects said machinery, said It is insisted that the erection of the mill is grant will be considered as null and void, and a condition precedent; and, consequently, that without effect or value until such an event takes until the claimant shows a performance of that place.” condition, or some reason for nonperformance, The answer of the district attorney of the which will satisfy the terms of the eighth United States, among other objections to the article of the treaty ceding Florida to the allowance of the claim, states that the condition United States, he has no title in law or equity of the grant has not been complied with by the

This case is believed to be fully decided grantee "that the said Andrew Burgevin has against the claimants by the decisions of this not built, constructed, or erected the said water court at its last term, in the cases of the United saw-mill on the said tract of land; but that he States v. Mills' Heirs, 12 Peters, 215, and The has always hitherto wholly failed and neglected United States v. Kingsley, 12 Peters, 476. to construct or erect the same, or to comply

APPEAid from the Superior Court of East

and no sufficient reason shown for its non-erection.

vana.

case.

V.

with and perform the said conditions in any | down by the court in that case. Kingsley's case way or manner whatever. The answer denies was well considered by this court-has been rethat the said Andrew Burgevin has been pre considered maturely upon the argument of vented from constructing and erecting said mill counsel made in the case before us—but we see and proceeding in the objects of said grant, no reason to modify or change, in any particu. owing to the general disturbed and unsettled lar, what was then decided, or why this case state of the country; and farther, if any such should be taken out of the application of that disturbed and unsettled state of the country at any time existed, it was merely temporary, and The decree of the Superior Court of East of very short continuance; whereas, more than Florida is therefore reversed. eleven years have elapsed (as appears by the

This cause came on to be heard on the transhowing of the said Andrew Burgevin himself) since the date of the said supposed grant; dur- script of the record from the Superior Court ing any part of which period he might, with for the District of East Florida, and was erdue and reasonable diligence, have proceeded gued by counsel; on consideration [*87 to erect and construct the said water saw-mill whereof, it is the opinion of this court that the on the said tract of land, in accordance with petitioner having failed to fulfill the condition the objects of said supposed grant."

of the grant, that the said grant or concession The Superior Court of East Florida gave a has no right or title to the land. Whereupon,

is null and void; and that the said petitioner decree in favor of the petitioner, and the it is now here decreed and ordered by this court United States prosecuted this appeal.

The case was argued by Mr. Grundy, Attor. that the decree of the said Superior Court in 86*) ney-General of the United States, and this cause be, and the same is hereby reversed Mr. Dent for the appellants, and by Mr. Coxe and annulled; and that this cause be, and the for the appellee.

same is hereby remanded to the said Superior Mr. Dent, for the United States, cited The Court, with directions to enter a decree in conUnited States v. Mills' Heirs, 12 Peters, 215; formity to the opinion of this court The United States v. Kingsley, 12 Peters, 476. The question before the court in these cases was precisely the same as that in the present *THE UNITED STATES, Appellant, (*88 case; and this court refused to confirm the grant.

This court has said it will apply the most lib-THE HEIRS of FERNANDO DE LA MAZA eral rules of equity to the condition of Spanish

ARREDONDO, Appellees. grants; but in this case there is no room for the

A concession by the Governor of East Florida, application of any such rules. The grantee made before the Florida treaty, in consideration of has not performed the condition of the grant; services, confrmed. nor did he, during all the period which passed after the grant, make an attempt to perform it. A PPFLAid from the Superior Court of East excuse for the nonperformance was offered:

In the Superior Court of East Florida, Fer"the disturbed state of the country;" and it nando de la Maza Arredondo filed a petition was overruled. This grant was made within praying a confirmation of a concession made to six months of the cession of Florida to the him, in consideration of services, by Don Jose United States. This court has allowed six Coppinger, on the 24th of March, 1817; he months for the performance of such conditions, being then Governor of East Florida, à deand by the Spanish law the same period was

pendency at that time of the crown of Spain. allowed.

The court confirmed the concession, and the Mr. Coxe, for the appellee, contended that United States prosecuted this appeal. the disturbed situation of the country, by Indians, prevented the erection of the mill con

Mr. Justice Wayne delivered the opinion of

the court: templated by the grantee. He cited Huidekper v. Douglass, 1 Wash. C. C. R. 258.

This case is one of a concession and grant of The Attorney-General, in reply, stated that land in East Florida, made by the Spanish auif this grant should be confirmed, there would thorities in that province, before the 24th Jan. be no limitation to claims for lands in Florida. uary, 1818; surveyed and granted in absolute There was a proposition to erect a water saw. property in consideration of the meritorious mill on the land, and the Governor of Florida services of Fernando de la Maza Arredondo. declared the grant should be void if the mill The decree of the court below in favor of the

The survey corresponds with the concession. should not be erected.

claimants is in every regard within the deci. Mr. Justice Wayne delivered the opinion of sions of this court, and the decree is therefore the court:

affirmed. This is an appeal from the Supreme Court of This cause came on to be heard on the tran: the Eastern District of Florida, confirming the script of the record from the Superior Court right of the appellee to a tract of land under a for the District of East Florida, and was ar. concession or grant from the Governor of Flor-gued by counsel; on consideration whereof, it ida, dated before the treaty of the 22d of Febru- is adjudged and decreed by this court, that the ary, 1819, between the United States and Spain. decree of the said Superior Court in this cause,

We think the concession or grant identical confirming fifteen thousand acres of land to the with that in Kingsley's case, in 12 Peters, 476; petitioners, be, and the same is hereby, in all and that it is controlled by the principles laid respects, affirmed.

89"]

*WILLIAM ÆF BRADLEY, Plaintif in E RRote to the Cirruit. Court of the United

States for Washington ,

trict of Columbia. THE WASHINGTON, ALEXANDRIA, AND

This was an action on the case, brought in GEORGETOWN STEAM PACKET' COM- the Circuit Court, on the 24th December, 1834, PANY, Defendants in Error.

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 Parol evidence to explain written agreement.

7th day of February, 1832, for the hire of the steamboat Franklin, before that time let and

delivered by the plaintiffs to the defendant, The plaintin in error had, by an agreement in

now the plaintiff in error. writing, hired a steamboat to be put "on the route" The cause was tried in 1838, and the jury, from Washington, in the District of Columbia, to under the directions of the court, found a verPotomac Creek, until another steamboat, then building, should be prepared, and be put "on the

dict for the plaintiffs. The defendant tendered route.' The plaintif in error was the contractor a bill of exceptions to the opinion of the court, for carrying the mail of the United States, which on the matters in controversy, which was duly was carried in a steamboat to Potomac Creek; except in winter, when the navigation of the River signed and sealed. The court entered a judg. Potomac was interrupted by ice, wben the mail ment for the plaintiffs according to the verdict, was carried by land. The steamboat so dired was and the defendant prosecuted this writ of error. employed in carrying the mail. The Ice prevented the use of the steamboat; and the owners claimed,

The bill of exceptions stated that the plain. under tbe contract, the bire of the boat during the tiffs gave in evidence and read to the jury the tlme her employment was thus interrupted. The following paper, dated 19th November, 1831, given to show the purpose for which the steamboat signed by William A Bradley, as follows: was employed, and to explain the meaning of the “I agree to hire the steamboat Franklin, unterms used in the contract, and of other matters conducing to show the meaning of the contract.

til the Sydney is placed on the route, to com. The court held that the evidence was admissible. mence to-morrow, 20th inst., at ($35) thirty.

It is a principle recognized and acted upon as a five dollars per day, clear of all expenses, other cardinal rule by all courts of

justice, in the con: than the wages of Captain Nevitt. struction of contracts, that the intention of the parties is to be inquired into ; and, if not forbidden "19th Nov., 1831. W. A. Bradley. by law, is to be effectuated.

*“On the part of the Washington, Alex. [*90 Extrinsic evidence is not admissible to explain a patent ambiguity; that is, one apparent on the face andria, and Georgetown Steam Packet Com. of the instrument; but it is admissible to explain

a pany, I agree to the terms offered by William A. latent ambiguity, that is, one not apparent on the Bradley, Esq., for the use of the steamboat trinsic evidence; that is but to remove the am- Franklin, until the Sydney is placed on the biguity by the same kind of evidence as that by route to Potomac Creek; which is thirty-five which it is created.

Extrinsic parol evidence is admissible to give el. dollars per day, clear of all expenses, other fect to a written Instrument, by applying it to its than the wages of Capt. Nevitt, which are to proper subject matter, by proving the circum- be paid by our company. stances under which it was made; whenever, with

"W. Gunton, President. out the aid of such evidence, the application could not be made in the particular case.

"Washington City, Nov. 19th, 1831." Note:Oral evidence, as applicable to written Dess. Eq. 149 ; Meads v. Lansing, 1 Hopk. Ch. 124 ; contracts.

Bayton v. Fowler, 5 Mart. Lou. 1; McFarlane v.

Moore, 1 Tenn. (Overt), 174. In general the rule is, that parol evidence is not Parol evidence can no more be given to explain, admissible to contradictor vary the terms of a than to contradict a written instrument. Kemmil written instrument, which is intelligible in its V. Wilson, 4 Wash. C. C. 308. terms ; nor to impose upon it a sense which its Parol evidence offered to control the legal opera. terms do not imply; and the rule is the same inition of an instrument, is as inadmissible as though equity as at law. Faw v. Marsteller, 2 Cranch, 10; 1t were to contradict its words. The Waldo, Mech's Bik v. Bik of Col. 6 Wheat. 326; Hunt v. Davies, 181 ; Linville v. Holden, 2 McArthur, 329. Rousmanier, 8 Wheat. 174 ; Renner v. B'k of Col. 9 Wheat. 581; Brent v. B'k of Metropolis, 1 Pet. Qualifications of the rule. 89; all g_2 Cranch C. Ct. 530 : Shankland v. Mayor, Parol evidence admissible to show that the word etc., of Wash. 5 Pet. 390; B'k of U. S. v. Dunn, 6 “dollars" in contract meant confederate notes. Pet. 51; Bradley y. Washington, etc., Steam Packet Confederate Note Case, 19 Wall. 548; Thorington Co. 18 Pet. 89; Sprigg v. B'k of Mt. Pleasant, 14 v. Smith, 8 Wall. 1, 12. Pet. 201 ; aff'g 1 McLean, 384 ; Phillips v. Preston, Where land is conveyed to a person “as trustee" 5 How. 278; Garrison v. Memphis Ins. Co. 19 How parol evidence is admissible to show on what trusts 312; Pomeroy v. Manin, 2 Paine, 476 ; McCulloch v. the deed was made. Rallroad Co. v. Durant, 5 Girard, 4 Wash. C. C. 289; Tilghman v. Tilghman, Otto, 376. Bald. 464 ; Kimble v. Lull, 3 McLean, 272 : The Between parties to contract of indorsement Waldo, Davies, 161 ; B'k of Hallowell . Baker, 1 parol evidence admissible to show that the indorseMinn. 261 ; Troy Iron and Nail Factory v. Corning, ment was only made to transfer title, without any 1 Blatchf. 467 ; Seden v. Myers, 20 How. 506 ; Ran.

liability of the Indorser being intended or dall v. Phillips, 3 Mass. 378 ; Auld v. Hepburn, 1 incurred. Davis v. Brown, 4 Otto, 323. Cranch C. C. 122 ; Ladd v. Wilson, 1 Cranch C. c. Receipts and statements in bills of lading as to 293: The Hermitage, 4 Blatchf. 474 ; Smith v. the quantity or conditions of the goods shipped Hoffman, 2 Cranch C. C. 651 ; Forsyth v. Kim- may be contradicted by parol. Choate v. Crown. ball, 91 U. S. 1 Otto, 291 ; Parkhurst v. Van Cort- / Inshield, 3 cliff. 184 ; Archer v. Adriatic, 8 Report. landt, 1 Johns. Ch. 822 ; Gittings v. Hall, 1 Harr. er, 231; Cafried v. Walch, 1 Leg. Gaz. Rep. 121. & J. 14; King v. King, 7 Mass. 496; South Carolina To show what bank was intended in a pote paySociety v. Johnson, 1 McCord, 41; Barkley v. able to a person as "cashler," Bank of Newberry Barkley. 3 McCord, 269 : Hawes v. Barker, V. Baldwin, 1 Cia. 519 Johds. 506: Brown v. Cobb. 10 La. (Curry) 172 ; Parol evidence is admissible to vary, etc., by inChurch v. Church, 4 Yeates, 281; McDermott v. corporating other writings referred to. Jackson United States Ins. Co. 3 Serg. & R. 607; Howard v. V. Sprague, 1 Paine, 494 ; Harlow v. Thomas, 15 Rogers. 4 larr. & J. 278 : Tymason v. Bates, 14 Pick, 66: Jackson v. Parkhorst, 4 Wend. 374 ; Bliss Wend. 671; Moser v. Lehenguth, 2 Rawle, 428 : v. Branham, 1 J. J. Marsh. 200 ; Jackson v. Ran. Heagy v. Umberger, 10 Serg. & R. 342; Pooser v. rom, 18 Johns. 107; Hodges v. Husefall, 1 Russ. & Tyler, 1 McCord's Ch. 18; Holmes v. Simons, Mylne. 116; 1 Scho. & Lel. 22; Saunderson v. Jack

“Pishey Thompson, Esq.

form you that the board cannot admit your “Washington City, Dec. 5th, 1831.

right to terniinate the agreement on such "Dear Sir-I will thank you to advise the grounds, and regard it as being still in full president and directors of Washington, Alex force, and the boat as being in your charge. andria, and Georgetown Steam Packet Com- However disposed the board might have pany, that, the navigation of the Potomac be been to concur with you in putting an end to ing closed by ice, we have this day commenced the agreement, under the circumstances you carrying the mail by land, under our winter have described, if the company had not been arrangement; and have therefore no further already in litigation with you and your coloccasion for the steamboat Franklin, which is league, for the recovery of a compensation for now in Alexandria in charge of Capt. Nevitt. the use of the Franklin under another contract,

"The balance due your company for the use to the strict letter of which a rigid adherence of the Franklin, under my contract with Dr. ) is contended for on your part, notwithstandGunton, will be paid on the presentation of a ing. *it had undergone a verbal modifi- (*91 bill and receipt therefor. With great respect, cation, the board could not but recollect this, "Your obedient servant,

and be influenced thereby. “W. A. Bradley.

"Yours, respectfully,

"W. Gunton, President." “Pishey Thompson, Esq., Present.”

“Wm. A Bradley, Esq.” In reply to this letter the president of the

The plaintiffs also proved that the steamboat Steam Packet Company wrote to the defendant Sydney was in Baltimore in November, 1831, as follows:

and continued there until the 26th of January, "Washington, Dec. 6th, 1831. 1832; and that she left there and arrived in the “Sir-Your letter of the 5th instant to Mr. Potomac, and was put "on the route” to PotoPishey Thompson, has been this afternoon sub-mac Creek on the 6th of February of that year. mitted to the board of directors of the WashShe had not been able to start from Baltimore ington, Alexandria, and Georgetown Steam until the 25th of January, 1832. The plaintiffs Packet Company, at a meeting holden for the claimed the hire of the Franklin from the 20th purpose. After mentioning that the naviga. of November, 1831, to the 6th day of March, tion of the Potomac is closed by ice, and that 1832, at thirty-five dollars per day. you had commenced carrying the mail by land, The defendant, to support the issue on his under your winter arrangement, you have there part, offered to prove, by competent witnesses, in signified you have no further occasion for that for several years immediately preceding the Steamboat Franklin, and that she was the date of the contract, he had been, and was then in Alexandria in charge of Captain Nevitt. still, contractor for the transportation of the

"The agreement entered into by you, con- United States mail from Washington to Fredtains no clause making its continuance to de- ericksburg; that the customary route of said pend on the matters you have designated; but, mail was by steamboat from Washington to on the contrary, an unconditional stipulation Potomac Creek, thence by land to Fredericks. to "hire the Franklin until the Sydney is burg, in which steamboat passengers were also placed on the route:” and I am instructed to in-' usually transported on said route; that during son, 2 Bos. & Pull. 238, 239; Dillon v. Harris, 4 | Prentiss, 6 Mass. 430 ; Dean v. Hall, 17 Wend. 214 ; Bligh. N. S. 343; Johns v. Churcb, 12 Pick. 557 ; Barrows v. Lane, 5 Vt. 161. Commercial Bank v. Clapier, 3 Rawle, 335; Dil- Admissible, if agreemeut on one side is not writ. lingham v. Estill, 3 Dana, 21; Heywood v. Perrin, ten, or where writing is given in part performance 10 Pick. 298.

of a parol contract. Shepherd v. Temple, 3 N. I. Parol evidence admissible to vary, etc., by incor. 455 ; Reab v. McAllister, 8 Wend. 116, 117; McCulo porating oral matter referred to. Commissioners loch v. Girard, 4 Wash. C. C. 289, 290, 2 ; Gerrish 8. McCalmont, 3 Penn. 122; Couch V. Meeker, 2 V. Washburn, 9 Pick. 338. Conn. 305 ; Hunt v. Livermore, 5 Pick. 395 ; Jeffrey Admissible to prove collateral, or independent 5. Walton, 1 Stark. 267.

facts or contract, as to which the writing is silent. Also, to show delivery conditional. Goddard v. Hall v. McCubin, 6 Gill & J. 107, 110 ; McCreary v. Cutts, 2 Fairf. 440, 442; Hagood v. Swords. 2 McCreary, 5 Gill & J. 147, 157 ; Kelsey v. Dickson, Bail. 305 ; Sharp v. Lipsey, 2° Bail. 113.

2 Blackf. 236; 3 Blackf. 189. Tuadmissible to vary etc., by oral matter not re- Admissible to supply blanks or omissions, or to lerred to. Heywood v. Perrin, 10 Pick. 228; Wharf show which one of two or more subjects or persons !. Howell, 5 Binn. 499 : Gardner Man, Co. v. Heald, was intended, where the instrument is applicable 6 Greenl. 381 ; Brigbam v. Rogers, 17 Mass. 571 ; to more than one indifferently. Cane v. "Cowper, Austin v. Sawyer, 9 Cow. 39; Spencer v. Tilden, 5 Moore, 104 ; Lepirt v. Brown, 1 Salk. 7; Richard Cow. 144 ; Wilson v. Hanson, 3 Fairt. 58 ; w. son v. Watson, 4 Barn. & Ad. 787; Thomas v. Boylst. Mad. Co. v. Searle, 15 Pick. 225 ; Small v. Thomas, 6 Term R. 671 ; Osborn v. Wise, 7 Car. & Quincy: 4 Greenl. 497 ; Wesson v. Carroll, P. 761 ; Coit v. Starkweather, 8 Conn. 289; Jones 1 Ala. 251 ; Phillips v. Keener, 1 Litt. 329 ; George v. Newman, 1 Black. 60; Wigram on Extr. Ev. 5. Harris, 4 N. H. 533 ; Atkinson v. Scott, 1 Bay, 118: Miller v. Travers, 8 Bing. 244 : Waterman v. 307 : Hamilton v. Wagner, 2 Marsh. Ky. 331. Johnson, 13 Pick. 261; Parks v. General Interest

Admissible !f contract be manifestly locomplete. Assurance Co. 5 Piek. 34 : Doe, ex dem. Gord, v. 2 Phill. Ev. 772, 8th Lond. ed.; Gale v. Kemper, 10 Needs, 2 M. & W. 129 ; Cole v. Wendell, 8 Johns. La. (Curry), 205 ; Crawford V. Jarrett, 2 Leigh. 116. 660 ; Sharp v. Lipsey, 2 Ball. 113; Mundide v. Admissible, to Crenshaw, 3 Stew. and Port. 87; Catlett v. Pac.

a

to prove trust. note to Conway v. Alexander, 108. Co. 1 Wend. 661; 4 Wend. 75; Wood v. Lee, 57. Cranch, 218; and note to Hughes v. Edwards, á Monr. 59.

Wheat. 489. For instance, as to blank Indorsement of note or Also, to explain ambiguous words or description, bill, as between the immediate parties. Stackpole or to show mistake in deed. See note to McIver 1. Arnold, 11 Mass. 32: Susq. Bridge Co. v. Evans, v. Walker, 9 Cranch, 177. 4 Wasb. c. C. 480; Brock v. Thompson, 1 Ball. Admissible, to show fraud, or illegal considera322; Wright v. Latham, 3 Murph. 298 : Hil v. Ely, tlon, or Insanity, or drunkeness, or duress, or un5 Serg. & R. 363; Pike v. Street, 1 Mood. & Malk: due influence, or imbecility, or infancy, etc., in 226 : Goupy v. Harden, 7 Taunt. 163; Butler v. avoidance of deeds. See note to Harding v. Handy, Suddeth, Modr. 641 ; Daniel v. McRae, 2 Hawks, 11 Wheat. 103, and note to Armstrong v. Toler, 1 690; Perkins 1. Catlin, 11 Conn. 213; Barker v. Wheat. 258

1839

91

all that time the defendant had used a steam. next day, placed by defendant on said route; boat belonging to himself on said route; that that during the whole of the period from the he also kept an establishment of horses and first stopping of the navigation as aforesaid, stages for the transportation of said mail all until the said 6th February, the defendant had the way by land from Washington to Freder abandoned the said route to Potomac Creek, and icksburg, at seasons when the navigation of prosecuted the land route from Washington to steamboats was stopped by ice; and had been Fredericksburg. obliged, for a considerable portion of every win. 2. That it was known to and understood by ter during the time he had been so employed in plaintiffs, at the time the contract in question the transportation of the mail, to use his said was made, and was a matter of notoriety, that stages and horses for the transportation of the as soon as the navigation should be closed by mails all the way by land to Fredericksburg; | ice, the United States mail from Washington in the mean time laying up his steamboat. to Fredericksburg would have to be transported That just before the date of said contract, the all the way by land carriage, instead of being defendant's own steamboat, usually employed transported by steamboat to Potomac Creek, as aforesaid on said route, had been disabled, and thence by land to Fredericksburg; and that and the defendant was at the time about com- the said steamboat Franklin would not be repleting a new boat, called the Sydney; which quired by defendant, and could not be used had been built at Washington, and sent around under said contract when the navigation should to Baltimore for the purpose of being fitted be closed. with her engine and other equipments neces- 3. That it was communicated to the plaintiffs sary to complete her for running on said route; by defendant, or his agent, before the time of and that she lay at Baltimore, in the hands of making said contract, that the defendant in. the workmen there, at the date of said con- tended to keep said steamboat in use under tract; that on the morning of the 5th day of said contract, so long as the navigation reDecember, 1831, Captain Nevitt, the command mained open, and no longer. er of the said steamboat Franklin, refused to To the admissibility of which evidence the go on the said route of the defendants to Fred said plaintiffs, by their counsel, objected, and ericksburg, in consequence of the ice then the court refused to permit the same to go to forming in the river, unless he was directed to the jury; but, at the instance of plaintiffs, do so by the plaintiffs; that application was gave the following instruction, viz.: then made to Doctor Gunton, the president of That if the jury shall believe, from the evi. the company, and he directed the said captain dence aforesaid, that the said defendant did, to proceed as required, and obey the orders of on the 19th day of November, 1831, write to the defendant; that the said captain did then said plaintiffs the said paper of that date, proceed on the said route, and returned as far bearing his signature, and that said plaintiff as Alexandria, where he stopped, and sent up did accept the same by the said paper of the the mail by land; and, although required to do same date, and that said defendant and plain80 by the agent of the said defendant, he re- tiffs did respectively *write to each other [*93 fused to come up to the city of Washington the papers bearing date the 5th and 6th of Dewith the boat, in consequence of the ice which cember, 1831, and that the said steamboat 92') had formed in *the river; and that said Sydney did in fact first arrive in the Potomac boat lay at Alexandria, frozen up in the harbor River on the 6th February, 1832, and was from that time till the 5th February, 1832; placed on the route to Potomac Creek, men. that at the same time the navigation of the Po- tioned in the said evidence, on the 7th Febru. tomac River became obstructed as aforesaid, the ary, 1832; that then the said plaintiffs are ennavigation at and from Baltimore became also titled to recover, under said contract, so proved obstructed from the same cause, and the said as aforesaid, at the rate of thirty-five dollars steamboat Sydney was also frozen up in the per diem, from the said 20th November, 1831, basin at Baltimore, before she had been com- to the said 6th of February, 1832, both inclu. pletely equipped with her engine; that at the sive. time she was frozen up, she wanted nothing to To which refusal, by the court aforesaid, to complete her equipment but the insertion of admit the evidence so offered by the said detwo pipes, a part of her engine, which pipes fendant, as also to the granting by the court of had been made, but not then put in place, the the said instruction aforesaid, so prayed for completing of which would not have required by the said plaintiffs, the said defendant, by his more than two days, and the boat would have counsel, excepted. been in complete order for being sent round to The case was argued by Mr. I. H. Bradley Washington, and put upon said route; but the and Mr. Jones for the plaintiff in error, and ice having interposed, it was deemed by the by Mr. Coxe for the defendants. workmen, and those in charge of the boat, that The counsel for the plaintiff in error main. the insertion of said pipes ought to be post- tained that the evidence offered on his part, poned till the navigation was clear; that in and rejected by the Circuit Court, ought to January, 1832, the said pipes were inserted, have been admitted, and that it imported a and the said boat being completely equipped full defense to the action; and that the terms for her voyage, left Baltimore for Washington, of the instruction from the court to the jury as soon as the state of the ice made it practica were in other respects erroneous and untenable, ble to attempt that voyage; was again stopped upon the data assumed in the instruction itself. by the ice, and obliged to put in at Annapolis, The hiring of the Franklin was from day whence she proceeded to Washington as soon to day. The contract was made under the as the ice left is practicable to recommence and known circumstances of the case, and was 80 accomplish the voyage, and arrived at Wash- understood by all the parties to it. The purington on the 6th February, 1832, and was, the pose for which the boat was hired was to

Peters 13.

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