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the United States to designate and furnish a wharf for the discharge of the coal from the ships, or its duty only to receive the coal at the wharf when delivered there by appellant.
The question is one of law. Any fault in fact upon the part of the United States is excluded by the findings of the court. The cause of delay is expressly found to have been due to the conditions in Honolulu harbor, and that to these conditions the United States was as subordinate and subject as appellant. The liability of the United States is asserted, nevertheless, on account of the custom existing in San Francisco between shippers and shipowners.
But the terms of the contracts are explicitly opposite to the custom. The custom requires a consignee to designate a berth for the discharge of cargo, and is hence responsible, it is contended, for the delays to a ship in reaching the berth, though caused by the conditions existing at the port of discharge. The contracts have no such provision, nor do they refer to the charter parties entered into between claimant and the ships. The contracts require delivery to be “at wharf” (first contract); "on wharf as customary" (second contract). “As customary" meant the mode of discharging freight at Honolulu. Carver, Carriage by Sea, 696. The custom there was to discharge freight upon the wharves. The terms of the contracts, therefore, are reinforced by the custom at Honolulu, and the custom at San Francisco cannot prevail against them.
The effect of usage upon the contracts of parties has been decided many times. It may be resorted to in order to make definite what is uncertain, clear up what is doubtful, or annex incidents, but not to vary or contradict the terms of a contract. Various applications of this principle are presented in the following cases: Barnard v. Kellogg, 10 Wall. 383; Heame v. Marine Ins. Co., 20 Wall. 488; The Insurance Companies v. Wright, 1 Wall. 456; Oelricks v. Ford, 23 How. 49; Hostetter v. Park, 137 U. S. 30; National Bank v. Burkhardt, 100 U. S. 686. We do not think it is necessary to make a detailed review of these cases or of the cases which appellant has cited in which
consignees have been charged with demurrage. To trace and relate the various conditions upon which consignees have been held liable would extend this opinion to too great length, and discuss matters irrelevant to the case as we regard it. In all of the cases cited there was an omission of duty on the part of the consignees. In the case at bar there was no omission of duty, and, besides, the United States was not a consignee of the coal in any proper sense of that word. There was no privity between it and the ships. Its contract was to receive coal at the wharf and pay for it on delivery there, after inspection. Its contract was not to receive coal in lighters or to bear any expense in the transportation to the wharves. It is manifest that coal on board ships in a harbor is not in the same situation as coal on a wharf. The wharf, under the contract, was the place of destination, and the appellant took the chances, as observed by the Court of Claims, of obstacles which should intervene to delay the delivery of the coal at the wharf, as they did of other obstacles which might have intervened to prevent the coal reaching the harbor. It was not strictly the coal in the ships that the United States contracted to take. It was certain quantities of coal, and on account of this, in the exercise of their rights under the second contract, appellant bought coal in the open market and tendered it in fulfillment of that contract. The liability of the United States to accept we shall presently consider. We cite the fact now as illustrating the meaning of the contract. It is manifest from these views the Court of Claims was right in holding the United States was not liable for the delay caused to the ships by the conditions which existed in Honolulu harbor.
2. By the terms of the second contract (June 23, 1898) the appellant agreed to deliver and the United States agreed to “receive about 5,000 tons” of coal, delivery to commence with about 2,200 tons, to arrive at Honolulu on or about the first day of October, 1898. By the seventh of October delivery was made of 4,634 tons. About a month subsequently appellant purchased 366 tons of coal of a ship then in the harbor,
and tendered the coal to the United States in fulfillment of the contract to deliver 5,000 tons. The United States refused to receive it, and appellant sold it in the open market for $3.061 per ton less than $9, the contract price. This was the best price which could be obtained, and the loss to appellant was $1,120.87. The Court of Claims held that the appellant was not entitled to recover.
We think this was error. The obligations of parties were reciprocal; one to deliver, the other to receive, about 5,000 tons of coal, and equally reciprocal is the liability for non-performance of the obligations. The only question can be, is 366 tons less than 5,000 tons, “about 5,000 tons”? We think not. The difference is too great. We said in Brawley v. United States, 96 U. S. 168, 172, that in engagements to furnish goods to a certain amount, the quantity specified is material and governs the contract. “The addition of the qualifying words ' about,' more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight." See also Cabot v. Winsor, 1 Allen, 546, 550; Salmon v. Boykin, 66 Maryland, 541; Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462; Cross v. Eglin, 2 Barn. & Adol. 106; Morris v. Levison, 1 C. P. D. 155, 158; Bourne v. Seymour, 16 C. B. 337, 353; Simpson v. N. Y., N. H. & H. R. R. Co., 38 N. Y. Supp. 341, 342.
The record does not inform us why the United States refused the tender, and we must assume that it had no other justification than its supposed right under the contract. Judgment reversed and cause remanded with directions to enter
judgment for appellant (claimant) in the sum of $1,120.87.
MR. JUSTICE HOLMES concurs in the result.
Statement of the Case.
HARTIGAN v. UNITED STATES.
APPEAL FROM THE COURT OF CLAIMS.
No. 72. Submitted December 6, 1904.-Decided January 3, 1905.
A cadet at the West Point Military Academy is not an officer of the United
States Army within the meaning of $8 1229, 1342, Rev. Stat., and, if delinquent, may be dismissed by the President without trial and conviction by court-martial.
APPELLANT filed a petition in the Court of Claims to have declared void his dismissal from the United States Military Academy at West Point, and for judgment for his pay as a cadet from July 27, 1883, to July 1, 1889, amounting to $3,417.
The appellant was duly appointed a cadet in the Military Academy on the first day of July, 1880, and served as such until the twenty-seventh of July, 1883, when he was summarily dismissed, by order of the President, upon charges of maltreating a new cadet upon guard, as well as other improper conduct. After the dismissal of appellant another cadet was appointed to succeed him, was duly graduated from the Academy, and appointed and commissioned a second lieutenant in the Army, and subsequently a captain of the Twenty-fifth Regiment of Infantry.
The appellant, subsequently to his dismissal, presented petitions respectively to the Adjutant General of the Army and to the Secretary of War, in which he asserted his innocence of the charges made against him, and prayed for reinstatement or trial by court-martial. He also presented a petition April 21, 1888, to the President, asking for a revocation of the order of dismissal, a trial by court-martial, and for an order assigning and appointing him to the Army as of the date of the assignment of the last graduate of his class. The petitions were all denied.
The Court of Claims held that he was not entitled to recover, and dismissed his petition. 38 C. Cl. 346.
Mr. L. T. Michener and Mr. W. IV. Dudley for appellant:
Appellant was an officer in the sense of $ 2, Art. 2, of the Constitution. He was appointed pursuant to $ 1315, Rev. Stat., and took the oath presented by § 1320. Cadets are subject to perform duty, $ 1323, to courts-martial, $ 1326, and receive a salary, $ 1339. Their service is actual service in the Army. United States v. Morton, 112 U. S. 1; their status that of officers, United States v. Hartwell, 6 Wall. 385, 393. Similar rules apply to cadets at the Naval Academy, Rev. Stat. $$ 1511, 1528; United States v. Baker, 125 U. S. 646; Fitzpatrick v. United States, 37 C. CI. 332; Perkins v. United States, 20 C. Cl. 438; S. C., 116 U. S. 483; Jasper's Case, 38 C. CI. 202; United States v. Hartwell, 95 U. S. 760; United States v. Cook, 128 U. S. 254.
The President has not the legal authority to dismiss a cadet in the Military Academy in time of peace except upon and in pursuance of the sentence of a court-martial. $1229 Rev. Stat.; $ 5, Act of July 13, 1866, 14 Stat. 92; Blake v. United States, 103 U. S. 227; Gratiot's Case, 1 C. Cl. 258; 2 Story Const. $ 1537; McBlair's Case, 19 C. Cl. 528, 541; Sunderland Stat. Con. § 203.
The law provided a military tribunal by which appellant could have been tried. Rev. Stat. $$ 1229, 1326; Arts. of War, $$ 71-114; 17 Stat. 604.
Cadets are not merely candidates. This action for pay will lie as brought. United States v. Perkins, 116 U. S. 483.
Mr. Assistant Attorney General Pradt and Mr. Assistant Attorney George M. Anderson for the United States:
Claimant was not an officer within the intent of $ 1229 Rev. Stat. For the various acts establishing the position of cadet, see 1 Stat. 366; Act of July 16, 1798; Act of March 16, 1802, 2 Stat. 132, 137; Act of April 29, 1812, 2 Stat. 720; $ 3, Act of June 18, 1878. A West Point cadet is an enlisted man. As to what is enlistment, see Erichson v. Beach, 40 Connecticut, 283; In re Grimley, 137 U. S. 147; $$ 1315-1323