is made by a recital of Burgeon's survey. It is this survey, also, which the court below decrees in favor of the claimant, and which it is to be particularly understood this court affirms. But this court thinks it necessary to say further, in affirming the decree of the court below, rejecting the claim of the petitioner to have fourteen thousand five hundred acres of land surveyed to him, excluding land covered with water and marshes, that even though the survey had not been made, it would not be competent to the court below, or to this court, to designate a new location, varying from the original concession, as any such alteration on ■ concession would be equivalent to a new grant. See the case of the United States v. Huertas, 9 Peters, 171. The acts of Congress by which these cases are subjected to judicial investigation and judgment, give no such power to the courts. This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel; on consideration whereof, it is adjudged and decreed by this court that the decree of the said Superior Court in this cause be, and the same is hereby, in all respects, affirmed. Conditional Spanish land grant in Florida. A concession was made by the Governor of Florida, before Florida was ceded to the United States, on condition that the grantee should erect a water saw-mill, and with the precise condition, that until he executes the said machinery, the grant to be considered void, and without effect, until that event takes place." The mill was never erected; and no sufficient reason shown for its non-erection. The court held that the concession gave no title to the land. A PPEAL from the Superior Court of East Mr. Grundy, Attorney-General of the United States, submitted this case to the court, alleging that the claimant relies on a concession made by Governor Coppinger for 16,000 acres of land, dated September 12th, 1816. The grant is upon a condition, namely, the erection of a water saw-mill; "and with the precise condition that until he executes said machinery, this grant will be considered as null and void, and without effect or value until that event takes place," etc. The mill was never erected. No sufficient reason is shown for its non-erection. It is insisted that the erection of the mill is a condition precedent; and, consequently, that until the claimant shows a performance of that condition, or some reason for nonperformance, which will satisfy the terms of the eighth article of the treaty ceding Florida to the United States, he has no title in law or equity. This case is believed to be fully decided against the claimants by the decisions of this court at its last term, in the cases of the United States v. Mills' Heirs, 12 Peters, 215, and The United States v. Kingsley, 12 Peters, 476. Mr. Justice Wayne delivered the opinion of the court: This case, like that of The United States v. Andrew Burgevin, is controlled by the decision of this court in the case of The United States v. Kingsley, 12 Peters, 476. The decree of the Superior Court of East Florida is therefore reversed. This cause came on to be heard on the transcript of the record from the Superior Court for the District of East Florida, and was argued by counsel; on consideration whereof, it is the opinion of this court that the petitioner having failed to fulfill the condition of the grant, that the said grant or concession is null and void; and that the said petitioner has no right or title to the land. Whereupon it is now here decreed and ordered by this court that the decree of the said Superior Court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said Superior Court, with directions to enter a decree in conformity to the opinion of this court. THE UNITED STATES Appellant, [*85 V. ANDREW BURGEVIN, Appellee. Conditional Spanish land grant in Florida. 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 condition of the grant not having been performed according to the terms of the grant. A PPEAL from the Superior Court of East Andrew Burgevin, on the 21st day of May, 1829, presented a petition to the judge of the Superior Court for the District of East Florida, claiming a tract of land of five miles square, or sixteen thousand acres, situated in the District of East Florida, under a title derived from a grant made to him by the Spanish government, on the 13th day of January, 1818. The petition addressed by Andrew Burgevin to Governor Coppinger, asked for the grant for the purpose of erecting a water saw-mill on the same, with a view not only to remedy the notable want of lumber which is felt at that place, but also to supply the export trade of that article, so much recommended to the government of Florida by the superior authority of Ha vana. The grant was made to Andrew Burgevin, in consideration of the advantages and benefit which the province would receive from the proposed establishment; "with the precise condition that, until he erects said machinery, said grant will be considered as null and void, and without effect or value until such an event takes place." The answer of the district attorney of the United States, among other objections to the allowance of the claim, states that the condition of the grant has not been complied with by the grantee "that the said Andrew Burgevin has not built, constructed, or erected the said water saw-mill on the said tract of land; but that he has always hitherto wholly failed and neglected to construct or erect the same, or to comply with and perform the said conditions in any way or manner whatever. The answer denies that the said Andrew Burgevin has been prevented from constructing and erecting said mill and proceeding in the objects of said grant, owing to the general disturbed and unsettled state of the country; and farther, if any such disturbed and unsettled state of the country at any time existed, it was merely temporary, and of very short continuance; whereas, more than eleven years have elapsed (as appears by the showing of the said Andrew Burgevin himself) since the date of the said supposed grant; during any part of which period he might, with due and reasonable diligence, have proceeded to erect and construct the said water saw-mill on the said tract of land, in accordance with the objects of said supposed grant." The Superior Court of East Florida gave a decree in favor of the petitioner, and the United States prosecuted this appeal. The case was argued by Mr. Grundy, Attor86*] ney-General of the United States, and Mr. Dent for the appellants, and by Mr. Coxe for the appellee. down by the court in that case. Kingsley's case was well considered by this court-has been reconsidered maturely upon the argument of counsel made in the case before us-but we see no reason to modify or change, in any particu lar, what was then decided, or why this case should be taken out of the application of that case. The decree of the Superior Court of East Florida is therefore reversed. This cause came on to be heard on the tran script of the record from the Superior Court for the District of East Florida, and was argued by counsel; on consideration [*87 whereof, it is the opinion of this court that the petitioner having failed to fulfill the condition of the grant, that the said grant or concession is null and void; and that the said petitioner has no right or title to the land. Whereupon, it is now here decreed and ordered by this court that the decree of the said Superior Court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said Superior Court, with directions to enter a decree in conformity to the opinion of this court. Mr. Dent, for the United States, cited The United States v. Mills' Heirs, 12 Peters, 215; 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 liberal rules of equity to the condition of Spanish grants; but in this case there is no room for the application of any such rules. The grantee has not performed the condition of the grant; nor did he, during all the period which passed after the grant, make an attempt to perform it. In The United States v. Kingsley the same excuse for the nonperformance was offered: "the disturbed state of the country;" and it was overruled. This grant was made within six months of the cession of Florida to the United States. This court has allowed six months for the performance of such conditions, and by the Spanish law the same period was allowed. Mr. Coxe, for the appellee, contended that the disturbed situation of the country, by Indians, prevented the erection of the mill contemplated by the grantee. He cited Huideköper v. Douglass, 1 Wash. C. C. R. 258. The Attorney-General, in reply, stated that if this grant should be confirmed, there would be no limitation to claims for lands in Florida. There was a proposition to erect a water saw mill on the land, and the Governor of Florida declared the grant should be void if the mill should not be erected. V. THE HEIRS of FERNANDO DE LA MAZA ARREDONDO, Appellees. A concession by the Governor of East Florida, made before the Florida treaty, in consideration of services, confirmed. A PPEAL from the Superior Court of East In the Superior Court of East Florida, Fernando de la Maza Arredondo filed a petition praying a confirmation of a concession made to him, in consideration of services, by Don Jose Coppinger, on the 24th of March, 1817; he being then Governor of East Florida, a dependency at that time of the crown of Spain. The court confirmed the concession, and the United States prosecuted this appeal. Mr. Justice Wayne delivered the opinion of the court: This case is one of a concession and grant of land in East Florida, made by the Spanish authorities in that province, before the 24th January, 1818; surveyed and granted in absolute property in consideration of the meritorious services of Fernando de la Maza Arredondo. The decree of the court below in favor of the The survey corresponds with the concession. claimants is in every regard within the decisions of this court, and the decree is therefore affirmed. This is an appeal from the Supreme Court of This cause came on to be heard on the tranthe 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 arconcession or grant from the Governor of Flor-gued by counsel; on consideration whereof, it ida, dated before the treaty of the 22d of February, 1819, between the United States and Spain. We think the concession or grant identical with that in Kingsley's case, in 12 Peters, 476; and that it is controlled by the principles laid is adjudged and decreed by this court, that the decree of the said Superior Court in this cause, confirming fifteen thousand acres of land to the petitioners, be, and the same is hereby, in all respects, affirmed. 89*] "WILLIAM A. BRADLEY, Plaintiff in ERROR to the Circuit Court of the United Error, V. THE WASHINGTON, ALEXANDRIA, AND GEORGETOWN STEAM PACKET COM- 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 Parol evidence to explain written agreement. 7th day of February, 1832, for the hire of the 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 mall 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. NOTE. Oral evidence, as applicable to written contracts. 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 inst., at ($35) thirtyfive dollars per day, clear of all expenses, other than the wages of Captain Nevitt. "19th Nov., 1831. W. A. Bradley. *"On the part of the Washington, Alex- [*90 andria, and Georgetown Steam Packet Company, I agree to the terms offered by William A. Bradley, Esq., 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." Dess. Eq. 149; Meads v. Lansing, 1 Hopk. Ch. 124; Parol evidence can no more be given to explain, than to contradict a written instrument. Kemmil v. Wilson, 4 Wash. C. C. 308. Parol evidence offered to control the legal operation of an instrument, is as inadmissible as though it were to contradict its words. The Waldo, Davies, 161; Linville v. Holden, 2 McArthur, 329. Qualifications of the rule. Parol evidence admissible to show that the word "dollars" in contract meant confederate notes. Confederate Note Case, 19 Wall. 548; Thorington v. Smith, 8 Wall. 1, 12. Where land is conveyed to a person "as trustee" parol evidence is admissible to show on what trusts the deed was made. Railroad Co. v. Durant, 5 Otto, 376. In general the rule is, that parol evidence is not admissible to contradict or vary the terms of a written instrument, which Is intelligible in its terms; nor to impose upon it a sense which its terms do not imply; and the rule is the same in equity as at law. Faw v. Marsteller, 2 Cranch, 10; Mech's B'k v. B'k of Col. 5 Wheat. 326; Hunt v. Rousmanier, 8 Wheat. 174; Renner v. B'k of Col. 9 Wheat. 581; Brent v. B'k of Metropolis, 1 Pet. 89; affig 2 Cranch C. Ct. 530; Shankland v. Mayor, etc., of Wash. 5 Pet. 390; B'k of U. S. v. Dunn, 6 Pet. 51: Bradley v. Washington, etc., Steam Packet Co. 13 Pet. 89; Sprigg v. B'k of Mt. Pleasant, 14 Pet. 201; aff'g 1 McLean, 384; Phillips v. Preston, 5 How. 278; Garrison v. Memphis Ins. Co. 19 How. 312; Pomeroy v. Manin, 2 Paine, 476; McCulloch v. Girard, 4 Wash. C. C. 289; Tilghman v. Tilghman, Bald. 464; Kimble v. Lull, 3 McLean, 272; The Waldo, Davies, 161; B'k of Hallowell v. Baker, 1 Minn. 261; Troy Iron and Nail Factory v. Corning, 1 Blatchf. 467; Seden v. Myers, 20 How. 506; Randall v. Phillips, 3 Mass. 378; Auld v. Hepburn, 1 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. Crownball, 91 U. S. 1 Otto, 291; Parkhurst v. Van Cort-Inshield, 3 Cliff. 184; Archer v. Adriatic, 8 Reportlandt, 1 Johns. Ch. 822; Gittings v. Hall, 1 Harr. & J. 14; King v. King, 7 Mass. 496; South Carolina Society v. Johnson, 1 McCord, 41; Barkley v. Barkley. 3 McCord, 269; Hawes v. Barker, 3 Johns. 506: Brown v. Cobb. 10 La. (Curry) 172; Church . Church, 4 Yeates, 281; McDermott v. United States Ins. Co. 3 Serg. & R. 607; Howard v. Rogers. 4 Ilarr. & J. 278: Tymason v. Bates, 14 Wend. 671: Moser v. Lebenguth, 2 Rawle, 428: Heagy v. Umberger, 10 Serg. & R. 342; Pooser v. Tyler, 1 McCord's Ch. 18; Holmes v. Simons, 3 Between parties to contract of indorsement parol evidence admissible to show that the indorsement was only made to transfer title, without any personal liability of the indorser being intended or incurred. Davis v. Brown, 4 Otto, 323. er, 231; Cafried v. Walch, 1 Leg. Gaz. Rep. 121. To show what bank was intended in a note payable to a person as "cashier," Bank of Newberry v. Baldwin, 1 Cliff. 519 Parol evidence is admissible to vary, etc., by incorporating other writings referred to. Jackson v. Sprague, 1 Paine, 494; Harlow v. Thomas, 15 Pick, 66; Jackson v. Parkhurst, 4 Wend. 374; Bliss v. Branham, 1 J. J. Marsh. 200; Jackson v. Ransom, 18 Johns. 107; Hodges v. Husefall, 1 Russ. & Mylne. 116; 1 Scho. & Lef. 22; Saunderson v. Jack "Pishey Thompson, Esq. "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. "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 in son, 2 Bos. & Pull. 238, 239; Dillon v. Harris, 4 Bligh. N. S. 343; Johns v. Church, 12 Pick. 557; Commercial Bank v. Clapier, 3 Rawle, 335; Dillingham v. Estill, 3 Dana, 21; Heywood v. Perrin, 10 Pick. 298. Parol evidence admissible to vary, etc., by incorporating oral matter referred to. Commissioners V. McCalmont, 3 Penn. 122; Couch v. Meeker, 2 Conn. 305; Hunt v. Livermore, 5 Pick. 395; Jeffrey . Walton, 1 Stark. 267. Also, to show delivery conditional. Goddard v. Cutts, 2 Fairf. 440, 442; Hagood v. Swords. 2 Ball. 305: Sharp v. Lipsey, 2 Bail. 113. form 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 modifi- [*91 cation, the board could not but recollect this, and be influenced thereby. "Yours, respectfully, "W. Gunton, President." "Wm. A Bradley, Esq." 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 of January, 1832. The plaintiffs claimed the hire of the Franklin from the 20th of November, 1831, to the 6th day of 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 Prentiss, 6 Mass. 430; Dean v. Hall, 17 Wend. 214; Barrows v. Lane, 5 Vt. 161. Admissible, if agreement on one side is not written, or where writing is given in part performance of a parol contract. Shepherd v. Temple, 3 N. H. 455; Reab v. McAllister, 8 Wend. 116, 117; McCulloch v. Girard, 4 Wash. C. C. 289, 200, 2; Gerrish v. Washburn, 9 Pick. 338. Admissible to prove collateral, or independent facts or contract, as to which the writing is silent. Hall v. McCubin, 6 Gill & J. 107, 110; McCreary v. McCreary, 5 Gill & J. 147, 157; Kelsey v. Dickson, 2 Blackf. 236; 3 Blackf. 189. Admissible to supply blanks or omissions, or to show which one of two or more subjects or persons was intended, where the instrument is applicable to more than one indifferently. Cane v. Cowper, Moore, 104; Lepirt v. Brown, 1 Salk. 7; Richardson v. Watson, 4 Barn. & Ad. 787; Thomas v. Thomas, 6 Term R. 671; Osborn v. Wise, 7 Car. & P. 761; Coit v. Starkweather, 8 Conn. 289; Jones v. Newman, 1 Black. 60; Wigram on Extr. Ev. 118; Miller v. Travers, 8 Bing. 244; Waterman v. Johnson, 13 Pick. 261; Parks v. General Interest Assurance Co. 5 Pick. 34; Doe, ex dem. Gord, v. Needs, 2 M. & W. 129; Cole v. Wendell, 8 Johns. 116. Inadmissible to vary etc., by oral matter not referred to. Heywood v. Perrin, 10 Pick. 228; Wharf v. Howell, 5 Binn. 499; Gardner Man. Co. v. Heald, 5 Greenl. 381; Brigham v. Rogers, 17 Mass. 571; Austin v. Sawyer, 9 Cow. 39; Spencer v. Tilden, 5 Cow. 144; Wilson v. Hanson, 3 Fairf. 58; W. Boylst. Man. Co. v. Searle, 15 Pick. 225; Small v. Quincy: 4 Greenl. 497; Wesson v. Carroll, 1 Ala. 251; Phillips v. Keener, 1 Litt. 329; George . Harris, 4 N. H. 533; Atkinson v. Scott, 1 Bay, 307: Hamilton v. Wagner, 2 Marsh. Ky. 331. Admissible if contract be manifestly Incomplete. 2 Phill. Ev. 772, 8th Lond. ed.; Gale v. Kemper, 10 La. (Curry), 205: Crawford v. Jarrett, 2 Leigh. 660: Sharp v. Lipsey, 2 Ball. 113; Mundine v. Crenshaw, 3 Stew and Port. 87; Catlett v. Pac. Ins. Co. 1 Wend. 561; 4 Wend. 75; Wood v. Lee, 57 Monr. 59. For instance, as to blank Indorsement of note or bill, as between the immediate parties. Stackpole v. Arnold, 11 Mass. 32: Susq. Bridge Co. v. Evans, 4 Wash. C. C. 480; Brock v. Thompson, 1 Bail. 322; Wright v. Latham, 3 Murph. 298; Hill v. Ely, 5 Serg. & R. 363; Pike v. Street, 1 Mood. & Malk. 226: Goupy v. Harden, 7 Taunt. 163; Butler v. Suddeth, 6 Monr. 541; Daniel v. McRae, 2 Hawks, 590; Perkins v. Catlin, 11 Conn. 213; Barker v. Admissible, to prove a deed to be a mortgage, or to prove trust. See note to Conway v. Alexander, Cranch, 218; and note to Hughes v. Edwards, 9 Wheat. 489. Also, to explain ambiguous words or description, or to show mistake in deed. See note to McIver v. Walker, 9 Cranch, 177. Admissible, to show fraud, or illegal consideration, or insanity, or drunkeness, or duress, or undue influence, or imbecility, or infancy, etc., in avoidance of deeds. See note to Harding v. Handy, 11 Wheat. 103, and note to Armstrong v. Toler, fi Wheat. 258. 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 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. 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.: 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 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 around to Baltimore for the purpose of being fitted 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 inthe 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 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 92*] had formed in the river; and that said boat lay at Alexandria, frozen up in the harbor 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 is practicable to recommence and accomplish the voyage, and arrived at Washington on the 6th February, 1832, and was, the 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 [*93 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 Febru ary, 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 Mr. 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 defense 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 |