case.

convey the mail, for the conveyance of which | ance of passengers; and this was one of the the plaintiff in error was the contractor; and objects of the contract. It was on these it had reference to two circumstances, viz.: one principies the Circuit Court proceeded in the 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. & Ald. 17; 11 East, 212; 2 Bos. & 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 94*] 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.

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 inst. 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 [*95 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 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 William 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 them 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 The evidence was properly excluded. The charge. The plaintiff also proved that the contract was express, plain, and simple; and steamboat Sydney was not placed on the route did not require the testimony. No difficulty until 7th of February, 1832; that the Sydney existed as to the meaning of the terms used in belonged to the defendant, and that she was not the agreement. "The route" was well under- finished so as to be able to start from Baltistood. It was not a mail route only, but it was more until the 25th of January. And thereused by the plaintiff in error for the convey-upon, the plaintiffs claimed the hire of the

Mr. 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 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 evi

steamboat Franklin from the 20th of November, 1831, to the 6th of February, 1832, seventynine days, at thirty-five dollars per day; allowing credit for three hundred and fifty dollars, paid by the defendant, and leaving a bal-dence that the defendant wrote to the plainance of $2,415.

tiff's 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 Sidney 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, second, 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 princi- [*97 ple recognized 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.

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 defendants's Own steamboat, 96*] 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, Amongst these rules, a leading one in relabeing completely equipped, left Baltimore for tion to written contracts, to which class the one Washington, as soon as the state of the ice in question belongs, is this: That extrinsic evimade it practicable to attempt the voyage, was dence is not admissible to explain a patent amstopped by ice, and obliged to put in at Ann-biguity; that is, one apparent on the face of apolis, 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 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 | Wash. Rep. 56, it is said, that, to discover the parcel or not, of the thing demised, is always intention of a testator, parol evidence may be matter of evidence. So where a grantor in a admitted of his circumstances, situation, condeed described the premises, as the farm on nection with the legatees, and his transactions which he then dwelt, this was held to be a lat- between the making of his will and his death. ent ambiguity, which might be explained by And this same doctrine is advanced by the evidence aliunde; and evidence was admitted, same court, in 3 Hen. & Mun. 283. that a particular piece of land, claimed under the deed, was at the time of the grant in a state of nature, uninclosed, 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 Day's Rep. 265.

In 8 Johns. 116, the case was this: A, by a written contract, agreed to receive of B sixty shares on 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 98*] being fifty dollars, parol "evidence was admitted, to show whether the five per cent. advance was to be paid on the sum paid in, only, or on the nominal amount.

In 2 Leigh, 630, the principle is laid down by the court, that parol evidence is not admissible to vary, contradict, add to, or explain a written agreement; but in cases of equivocal written agreements, the circumstances under which they were made may be given in evidence to explain their meaning. In the case of Birch v. Depeyster, 1 Starkie's Cases, 210, the charterparty stipulated that the captain should receive a specific sum, in lieu of privilege and primage, and the question was, whether the terms of the contract excluded all right on the part of the captain to use the cabin for the carriage of goods, on his own account. Gibbs, Chief Justice, said: Evidence may be received to show the sense in which the mercantile part of the nation use the term "privilege," just as you would look into a dictionary to ascertain the meaning of a word; and it must be taken to be used by the parties in its mercantile and established sense.

So where a charter party stipulated that a freighter should pay a certain sum per pound, etc., British weight, it was held, that as the word "weight" had two meanings, gross and net, this was such a latent ambiguity as to warrant the introduction of parol testimony. 1 Nott and M'Cord, 45.

We will close this reference to cases with that of The Mechanics' Bank v. The Bank of Columbia, 5 Wheat. 326. In that case, it was held by this court, that where a check was drawn by a person who was the cashier of an incorporated bank, and it appeared doubtful upon the face of the instrument whether it was an official or a private act, parol evidence was admissible to show that it was an official act; and accordingly, many facts and circumstances were given in evidence to prove in what character it was drawn.

*The cases which we have thus collect- [*99 ed together from amongst the very many which exist, will serve to show in how many aspects the question of the admissibility of extrinsic evidence in relation to written contracts has been presented and decided; and in how many forms, according to the various circumstances of the cases, the principle which we have been considering has been applied. Sometimes it has been applied to deeds, sometimes to wills, and sometimes to mercantile and other contracts. In some cases it has been resorted to to ascertain which of several persons was intended; in others, which of several estates. some, to ascertain the identity of the subject; in others, its extent. In some, to ascertain the meaning of a term, where it had acquired by use a particular meaning; in others, to ascertain in what sense it was used, where it admitted of several meanings. But in all the purpose was the same. To ascertain by this medium of proof the intention of the parties, where, without the aid of such evidence that could not be done; so as to give a just interpretation to the contract.

In

Without attempting to do what others have said that they were unable to accomplish-that is, to reconcile all the decisions on the subject -we think that we may lay down this principle as the just result. That in giving effect to a written contract, by applying it to its proper subject matter, extrinsic evidence may be admitted to prove the circumstances under which it was made; whenever, without the aid of such evidence, such application could not be made in the particular case.

With this principle in view, we proceed to inquire whether the evidence offered by the defendant, in this case, ought to have been received by the court.

In the case of Peish v. Dickson, 1 Mason's Rep. 11, it is said by the judge, that if by a written contract, a party were to assign his freight in a particular ship, it seemed to him that parol evidence might be admitted of the circumstances under which the contract was Now, had the evidence been received, it would made, to ascertain whether it referred to goods have disclosed the following state of facts: on board the ship, or an interest in the earn- That the route mentioned in the contract was ings of the ship; or in other words, to show in one on which the plaintiff in error transported what sense the parties intended to use the term. passengers, and also the mail; that the steamNor is this principle at all confined to mer-boat Sydney, mentioned in the contract, was cantile contracts; for in Robertson v. French, 4 East, 130, Lord Ellenborough, speaking on this subject, said that the same rule which applied to all other instruments, applied also to a policy of insurance. The admission of this kind of proof has been carried to a great extent, too, with a view to a correct construction of wills. In the case of Shelton's Executors v. Shelton, 1

designed to perform this service; and that the Franklin was wanted for the same purpose; that the Sidney was then at Baltimore, for the purpose of being fitted with her engine and equipments; that although the transportation of passengers and the mail was carried on, by the plaintiff in error, in a steamboat, whilst the river was open; yet, when the river was closed

by ice, so that navigation was obstructed, the plaintiff in error then transported passengers and the mail all the way over land to Fredericksburg; that when the river was thus obstructed, the plaintiff in error could not, and did not, use a steamboat; and that all these facts were known to the defendants in error. We think that this evidence ought to have been received, because it would have tended to show, by the circumstances under which the contract was made, what was the intention of the parties; and, in the language of the rule which we have laid down, that the contract, without its aid, could not be applied to its proper subject matter.

This principle is illustrated by the cases which we have before referred to. Take, for example, the case cited from 1 Mason, 11. That was assumpsit for a balance alleged to be due on consignments. In that case, parol evidence was received of the circumstances under which a contract was made, which contained this clause relating to the plaintiff's goods, viz., "On which goods Mr. D. (the defendant in the case) has advanced me $5,833, for which amount he will hold for re-imbursement, on the amount and net proceeds of the sales of said goods, which are only considered answerable for said amount advanced, as per our agreement;" for the purpose of showing, whether it was intended to waive any personal claim on the plaintiff, and to restrict the defendant's security for the repayment of the advance, to the goods only; or was meant merely to exempt the goods of the shippers, on freight, from being included as a security for the advance on the plaintiff's goods.

tion of the parties, to be derived from the written contract and the parol evidence taken together, was, a hiring and letting to hire, for so long a time as the boat could be used, that is, until the navigation was obstructed; subject to being terminated at any previous time, when the Sydney was ready to take her place. We think that the rule of law, which admits extrinsic evidence for the purpose of applying a written contract to its subject matter, justifies its admission, beyond the mere designation of the thing, or corpus, if we may so express it, on which the contract operates, and extends so far as to embrace the circumstances which accompany the transaction; when, withThe terms used in the written contract are, out the aid of those circumstances, the [*101 100*] "for the use of the steamboat Frank-written contract could not be applied to its lin, until the Sydney is placed on the route to proper subject matter. Potomac Creek." It is contended that this amounted to a stipulation to keep the Franklin in use until the Sydney was placed on the route; no matter what length of time may have elapsed before that was done. Suppose that the Sydney had been accidentally consumed by fire the day after the hiring of the Franklin, the effect of this construction would be, to make that hiring co-extensive in point of time with the existence of the Franklin, in a condition for use; although it is obvious that a temporary hiring only was in the contemplation of the parties. Again, suppose the plaintiff in error had sold the Sydney, and bought another boat, and put that other on the route; the construction contended for would lead to the result, that the hire of the Franklin would still have continued to have gone on, indefinitely. If this were so, it must be upon the principle that it entered into the contemplation of the parties, as a material term of the contract, that the plaintiff in error should keep the Franklin in use, not until he ceased to want it by having a steamboat to take its place, but until the identical steamboat Sydney, and no other, should take its place. We think that the evidence offered, and rejected by the court, would have shown why reference was made to the Sydney being placed on the route; that is, because she was expected to be ready for use in a very short time. It would have shown further, that the defendants in error knew the service for which their boat was wanted; what was the nature of that service; that whenever the river was obstructed by ice, the Franklin would not be wanted, because it could not be used, and because then another mode of transportation was resorted to. From all this it would have been competent to infer, that the words "until the Sydney is placed on the route," were not intended to fix that time as the period to which the hiring was to continue, at all events, and under all circumstances; but as being referred to, because the Sydney was then expected to be ready for use in a very short time; and so soon as she could be used, the Franklin would not be wanted, even although there should be no obstruction to navigation by ice. And, moreover, it would have been competent to infer, that as the defendants knew why the Franklin was wanted; for what service she was wanted; the character of that service, that is, that it would cease when she could not be used, by reason of the river being closed with ice; that, therefore, the real inten

So we have seen, in the case from 2 Leigh, 630, the proposition is stated in terms, that in equivocal written agreements the circumstances under which they were made may be given in evidence, to explain their meaning; and, accordingly, in that case, the judges rely upon the circumstances as disclosed by the parol evidence, in connection with a written promise of indemnity, in deciding on its legal effect.

We could suggest many cases which we think would illustrate this principle, and prove, that from the necessity of the case, and consistently with the rules of law, the circumstances under which a written contract is made must be open to proof by extrinsic evidence, in order to ascertain the intention of the parties, and thus correctly interpret it. Suppose that during the late war, a person had been engaged, by contract, to transport munitions of war to the army; that, for that purpose, he had hired a steamboat of another, and had signed a written agreement, by which he engaged to take good care of the boat; suppose that, whilst he was engaged in this transportation, the boat had been destroyed by the eneiny, as it might rightfully have been by reason of the hostile character impressed upon it; that, thereupon, a suit had been brought by the person who let it to hire, upon the stipulation to take good care of the boat. Can it be doubted that it would have been competent for the defendant to have proven that he was a contractor with the government to transport munitions of war;

that he had hired the boat for that express the written contract to its proper subject matpurpose; and that these facts were known to ter. Accordingly, Mr. Starkie, in his book on the other party, so as to show the intention evidence, 1033, states that to be the reason why and understanding of the parties as to the kind evidence is admissible to prove the special and of danger to which the boat would unavoidably peculiar sense in which a word is understood. be exposed, in performing the very service for which it was hired.