ed by the government, for the sum of one million and sixty-one thousand six hundred ($1,061,600) dollars, United States currency." The price asked for the two docks was very near the sum authorized by Congress to be expended for the purpose. furnish and provide all labor, materials, The seventh clause of the contract is stat The specifications referred to were prepared by the firm, and contained the follow-ed in the margin.† ing_recital: "Location.-These dry docks shall be located as follows: One at the United States navy yard, Brooklyn, in the port of New York, and the other at the United States navy yard, Portsmouth, in the port of Norfolk, Va., upon available sites to be provided by the government. The length of each dry dock, respectively, shall be five hundred (500) feet inside of head to outer gate sill." Such other portions of the specifications as are material to be noticed are contained in the subdivision headed "General Construction," and are as follows: [375] *"Piles.-All foundation, brace, and crosscap piles shall be of sound spruce or pine, not less than twelve inches diameter at butt and six inches at top, and of such length as may be required for the purpose, and well driven to a firm bearing. "Sheet piling for cut-off's shall be of sound spruce, pine, or other suitable material, four inches and five inches in thickness, as shown on plans, dressed to a uniform thickness, grooved and fitted with white-pine tongues, driven close and to such depths as may be found necessary to make good work, and closely fitted to square piles at intersections. "Should the character of the bottom be found such as to warrant a modification of the pile system of floor construction, a concrete bed of not less than six feet in thickness may be substituted for the foundation piles, and the floor stringers and cross timbers imbedded therein and firmly secured thereto with iron bolts and anchors." The bid was accepted and a written contract was executed. In this contract recital was made of the advertisement for proposals, the making of the bid with accompany ing specifications and the acceptance thereof, and these documents thus referred to were annexed and made a part of the contract. The contract contained in its first clause the following: In addition, penalties were stipulated for delay in the performance of the work, and a discretion was vested in the Secretary of the Navy to allow an extension of time for any failure to complete the dock within the contract period. The work was to be paid for in instalments upon proper estimate, as it progressed, and ten per cent was to be retained by the government. until its final completion. The construction was commenced in November, 1887, and after considerable labor[377] had been expended and material used, "about August 31, 1888, it first became apparent that a portion of the dry dock structure had sunk and moved inward towards the exca †The construction of the said dry dock and its accessories and appurtenances herein contracted for shall conform in all respects to and with the plans and specifications aforesaid, which plans and specifications are hereunto annexed, and shall be deemed and taken as forming a part of this contract, with the like operation and effect as if the same were incorNo omission in the plans or porated herein. specifications of any detail, object, or provision necessary to carry this contract into full and complete effect. in accordance with the true in tent and meaning hereof, shall operate to the disadvantage of the United States, but the same shall be satisfactorily supplied, performed, and observed by the contractors, and all claims for extra compensation by reason of, or for or on account of, such extra performance, are hereby and in consideration of the premises, expressly waived; and it is hereby further provided, and this contract is upon the express condition that the said plans and specifications shall not be changed in any respect when the cost of such change shall exceed five hundred dollars, except upon the written order of and if changes are thus made the actual cost the Secretary or acting Secretary of the Navy; thereof, and the damage caused thereby, shall be ascertained, estimated, and determined by a board of naval officers appointed by the Secretary of the Navy, and the contractors shall be bound by the determination of said board, or a majority thereof, as to the amount of increased or diminished compensation, which they (the "The contractors will, within twenty days contractors) shall be entitled to receive, if any, after they shall have been placed in pos- being further expressly understood and agreed in consequence of such change or changes; (t session and occupancy of the site by the party that such working plans and drawings, of the second part, which possession and occuand such additional detailed plans and specifipancy of the said site during the period of cations as may be necessary, shall be furconstruction, and until the completion and nished by and at the expense of the contractors, delivery of the work hereinafter mentioned, subject to the approval of the chief of the shall be secured to the contractors by the Bureau of Yards and Docks, and that if during party of the second part, commence, and the prosecution of the work it shall be found within twenty-four calendar months from advantageous or necessary to make any change such date, construct and complete, ready to or modification in the aforesaid plans and specireceive vessels, a timber dry dock, to be lo-fications, such change or modification must be cated at such place on the water line of the navy yard, Brooklyn, New York, as shall be designated by the party of the second part; and will, at their own risk and expense, agreed upon in writing by the contractors ard by the officer in charge of the work, the agree ment to set forth fully the reasons for such change and the nature thereof, and to be subject to the approval of the party of the second part. vation, and had thereby sustained damage, | ten per cent, which had been retained on the Simpson & Co. in the meanwhile addressed As the work progressed estimates thereof were made as required by the contract, and the amount, less the ten per centum reserved, was regularly paid to the contractors. Moreover, additional piling being required, a supplementary estimate thereof was made, the price for the same fixed, and the amount was paid to the contractors. The dock was completed May, 1890, and a board was appointed to inspect it, and upon a favorable report the dock was finally received by the United States, and a claim for Messrs. James H. Hayden and Joseph Messrs. George Hines Gorman and *Mr. Justice White, after making the[379] foregoing statement, delivered the opinion of the court: Considering the facts above stated, it is at once apparent that the claim against the United States can only be allowed upon the theory that it is sustained by the written contract, since if it be not thereby sanctioned it is devoid of legal foundation. The rule by which parties to a written contract are bound by its terms, and which holds that they cannot be heard to vary by parol its express and unambiguous stipulations, or impair the obligations which the contract engenders by reference to the negotiations which preceded the making of the contract or by urging that the pecuniary result which the contract has produced has not come up to the expectations of one or both of the parties, is too elementary to require anything but statement. The principle was clearly announced in Brawley v. United States, 96 U. S. 173 [24: 624], where it was said: "All this is irrelevant matter. The writ ten contract merged all previous negotiations, Before measuring the claim by the contract, it is essential to clearly define the exact predicate upon which the demand necessarily rests. Reducing all the contentions of [880]the claimant to their ultimate conception, they amount simply to the proposition that the United States by the written contract guaranteed the nature of the soil under the site of the proposed dock, and assumed the entire burden which might arise in case it should be ascertained, during the progress of constructing the dock, that the soil under the selected site differed to the detriment of the contractor from that delineated upon the profile plan which had been made by an officer of the United States. Considering the contract itself, it is clear that there is nothing in its terms which supports, even by remote implication, the premise upon which the claimant must rest their hope of recovery. The contract imposed upon the contractors the obligation to construct the dock according to the specifications within a designated time for an agreed price upon a site to be selected by the United States. We look in vain for any statement or agreement or even intimation that any warranty, express or implied, in favor of the contractor was entered into concerning the character of he underlying soil. The only word which it is claimed supports the contention that a warranty was undertaken by the United States as to the condition of the soil is the statement found in the opening portions of the specifications, that the dock was to be built in the navy yard upon a site which was "available," and great stress was laid in the argument at bar upon this word. But the word "available" intrinsically has no such meaning as that The seventh paragraph of the contract consought to be given it. It certainly cannot tained a stipulation that "the construction of be said that the site selected for the dock was the said dry dock and its accessories and apnot available for the purpose, since one has purtenances herein contracted for shall conbeen actually erected thereon. It is conceded form in all respects to and with the plans and in argument that the word "available" has specifications aforesaid." Now, the recital in not naturally the meaning which must be at- the specifications as to an "available" site is tributed to it in order to support the con- only contained in the opening clause thereof, tention that there was a warranty as to the and naturally suggests only that it relates condition of the soil. But it is said the word solely to some place in the yard which should should be construed as having such significa- be selected in the discretion of the governtion, because bidders were referred to the ment suitable for the erection of a dry dock. commandants of the navy yards for informa-So, also, in the specifications as to the matetion as to the sites of the docks, and the plan showing the result of the examination made upon a portion of the yard was submitted to them. In other words, whilst admitting the rule that the contract is the law of the case, [381]and that the rights and obligations of the parties are to be alone determined from its context, the argument invokes a departure from that rule, and asks that the contract be so construed as to create a right in favor of one of the parties in conflict with the natural significance of the language of the contract, because of antecedent negotiations which took place between the parties. text of the contract. The advertisement for Aside from the contradiction which this contention involves, the meaning now claimed for the word "available" cannot be adopted without departing from the intention of the parties as manifested by the terms of the contract, and the documents forming part of it, and such meaning cannot moreover be sanctioned without doing violence to the con rials to be furnished, which follow the recital as to the location of the dock, there is not contained a word implying that a particular of a specially stable character, was to be the piece of ground in the navy yard, having soil site on which the dock was to be placed. The contrary, however, is clearly implied from the provisions as to foundation and other piling which were to be used in supporting and enclosing the structure. The foundation, brace and cross-cap piles, it was stipulated, were to be "of such length as may be required for the purpose, and well driven to a firm bearing," while it was stipulated that the sheet piling should be "driven close and to such depth as may be found necessary to make good work;" and these provisions were followed by a clause reciting that "should the character of the bottom be found such as to warrant a modification of the pile system of floor construction, a concrete bed of not less than six feet in thickness may be substituted for the foundation piles." Light is thrown upon the plain meaning of the contract by the conduct of the parties in the execution of the work. It is not pretended that when the character of the subsoil was discovered that the slightest claim was preferred that this fact gave rise to an extra allowance. The fact is that the contractors proceeded with the work, obtained delay for its completion, made their final settlements and received their last payment without ever asserting that any of the rights which they [383]deciding that such conduct would be decisive if the claim was supported by the contract, it is nevertheless clear that it affords a just means of adding forceful significance to the unambiguous letter of the contract and the self-evident intention of the parties in entering into it. now claim were vested in them. Without Judgment affirmed. HOME FOR INCURABLES, Appt., บ. MARY SPENCER NOBLE et al. EMELINE COLVILLE, Appt., v. AMERICAN SECURITY & TRUST COMPANY. (See S. C. Reporter's ed. 383-400.) with directions to affirm the decree of the Supreme Court of the District. See same case below, 10 App. D. C. 56. Statement by Mr. Justice White: Mary E. Ruth died on the 16th of June, 1892, having on the first day of the same month and year executed both a will *and a[384] codicil. After revoking all previous wills and codicils, and directing the payment of debts and funeral expenses, the will bequeathed all the real, personal, or mixed property to the American Security & Trust Company for the benefit of a granddaughter, ural life. On the death of the granddaughtSophia Yuengling Huston, during her natand that it should be the duty of the truser the will provided that the trust should end, tee to pay over University of Pennsylvania the sum of five to the Hospital of the thousand dollars for purposes stated, and to deliver all the "residue and remainder of the estate of whatever kind" to the Home for Incurables, to which corporation such residue was bestowed for a stated object. The codicil unquestionably gave to Emeline Colville a bequest of five thousand dollars. The will and codicil are printed in full in the margin.t †I, Mary Eleanor Ruth, residing in the city of Washington and the District of Columbia, being of sound and disposing mind and memory, do make and publish and declare this to be my last will and testament, hereby revoking and making null and void any and all former wills and codiclls by me at any time made. First. I direct my executor hereinafter named Codicil, when effective-construction of codi- to first pay out of my estate my funeral ex cil and will. 1. A codicil which makes the testator's intent reasonably clear may be given effect, though It is not so free from ambiguity as the provisions of the will which are affected by it. 2. A codicil revoking a "bequest" to a home for incurables, and bequeathing to a friend "the $5,000 (heretofore in my will bequeathed to said Home for Incurables)," does not revoke the provision in the will by which all the residue and remainder of the estate. of whatever kind, is given (using words "devise and bequeath") to the Home for Incurables, but does revoke a bequest of $5,000 to a certain hospital, which is the only bequest of that amount in the will, both those gifts being declared to be for the establishment of beds in memory of a son of the testatrix. [Nos. 57, 61.] penses and all just debts. Second. I give, devise, and bequeath all of my estate, real, personal, or mixed, whether in possession, reversion, or remainder, now acquired or hereafter to be acquired, and wheresoever situate, to the "American Security & Columbia, its successors and assigns, in trust Trust Company" of Washington City, District of nevertheless for the following uses and purposes only, that is to say To invest and to reinvest the proceeds of my said estate in its discretion from time to time that is, either in United States bonds, or in in any of the following classes of securities; municipal or state bonds, or in first-mortgage bonds of dividend-paying railroads, or in loans secured by first trusts upon real estate in the District of Columbia, said loans not to exceed three-fourths market value of said real estate; and to pay over so much of the annual income from said investments and reinvestments to the Argucd and Submitted November 9 & 10, guardian or guardians of my granddaughter 1898. Decided January 3, 1899. A PPEALS from a decree of the Court of Appeals of the District of Columbia holding that the effect of the codicil to a will was to revoke the bequest and devise of the residue of the estate, and that after paying the legacies, such residue should be distributed among the heirs at law, and reversing a decree of the Supreme Court of that District holding that the codicil substituted the legatec to a bequest made in favor of the hospital of the University of Pennsylvania. De cree of the Court of Appeals of said District reversed, and cause remanded to that court, Sophia Yuengling Huston as may be sufficient to provide for her maintenance, education, and support until she becomes of the full age of twenty-one years after which period the entire income so annually received from said investments and reinvestments shall be paid over by said trustee to my said granddaughter for her sole use and benefit for and during the period of her natural life. Provided, however, that the income thus provided for my sald granddaughter for and during the term of her natural life sball sooner cease and determine at any time when it is ascertained by my said trustee that given by said granddaughter, or in anywise exany part of my said income shall have been pended by or through her for the use or benefit of Robert J. Huston, from whom her mother, [385] In October, 1895, the American Security & Trust Company, alleging the death of the granddaughter and the termination of the trust, filed a bill to obtain a construction of the will and codicil, to the end that it might be enabled to distribute the estate, and thus [386]be legally discharged from all *obligations in the premises. The bill charged that, considering the will and codicil together, there was uncertainty whether the five thousand dollars given by the codicil to Mrs. Colville revoked the bequest in favor of the University of Pennsylvania, or substituted Mrs. Colville, in whole or only in part, in the place and stead of the Home for Incurables, as to the gift in the will to that institution. The Hospital of the University of Pennsylvania, the Home for Incurables, Emeline Colville, and the heirs at law of the decedent, were made parties to the bill. The Hospital of the University of Pennsylvania by its answer denied that there was any ambiguity in the will in regard to the bequest made to it, and averred that such bequest was in no wise impaired by the codicil. The Home for Incurables, although conceding by its answer that there was an ambiguity arising from the will and codicil considered in juxtaposition, yet alleged that the codicil did not in any respect diminish the bequest and devise of the residuum made to it by the will, or, if it did, operated to do so only to the amount of five thousand dollars. Emeline Colville, by her answer, while admitting that there was ambiguity in the will and codicil considered together, averred that such ambiguity was patent and was resolvable by my daughter. obtained a divorce with custody of said Sophia Yuengling Huston given absolutely to her said mother. In case the income shall so cease and determine before the death of my said granddaughter, then said income, and ail accumulations thereof, and the entire principal of said trust estate, shall be disposed of as provided in the next succeeding item of this my last will and testament. I further authorize my aforesaid trustee to sell any portion of the estate herein conveyed to it in trust as aforesaid, and to invest and reinvest the proceeds as herein before provided, giving to purchasers good and sufficient deeds or other evidences of title, without obligation upon the part of said purchasers to see to the application of the purchase money. Third. In the event of the death of my said granddaughter Sophia Yuengling Huston, or of the occurrence of the prior contingency for the determination of said trust hereinbefore provided in item two, then the trust hereinbefore created and vested in the American Security & Trust Company shall cease and be determined, and so much of my said estate shall thereupon be conveyed and delivered over by said American Security & Trust Company to the Hospital of the University of Pennsylvania as amounts to five thousand dollars, said five thousand dollars to be used by said hospital to endow and forever maintain a first-class perpetual bed in said hospital in the city of Philadelphia, said bed to be in the name and memory of my beloved son Malancthon Love Ruth. All the residue and remainder of my said estate, of whatever kind, after the payment of said five thousand dollars for the establishment of said perpetual bed in said hospital, I give, devise, and bequeath to the "Home for Incur settled rules of construction. She averred that, applying such rules, it was clear that the codicil operated to revoke the bequest and devise of the residuum of the estate made in favor of the Home for Incurables; and *had substituted Mrs. Colville as [387] the residuary devisee after the payment of the amount of the bequest in favor of the Pennsylvania institution. The heirs at law by their answer, while admitting that the codicil gave Emeline Colville five thousand dollars, also asserted that the gift of the resi due made by the will, in favor of the Home for Incurables, was revoked by the codicil, and therefore that, after payment of the legacy of five thousand dollars given to the Hospital of the University of Pennsylvania, and a like amount due to Mrs. Colville under the codicil, the remainder of the estate passed to them, since as to such remainder the decedent was intestate. The trial court found that the codicil gave Emeline Colville five thousand dollars, and substituted her to the bequest made in favor of the Hospital of the University of Pennsylvania; hence, it decreed Mrs. Colville entitled to the five thousand dollars, and that the Pennsylvania corporation took nothing. It further decreed that the other provision of the will-that is, the disposition of the residuary estate in favor of the Home for Incurables-was unaffected by the codicil. The court of appeals, to which the controversy was taken, while agreeing that the codicil gave Mrs. Colville five thousand dollars, and that she was entitled to this sum, held (the Chief Justice dissenting) that the ables" at Fordham, New York city, in the state of New York, its successors and assigns, forever to be used by said Home for Incurables to endow and forever maintain one or more beds in said home, in the name and memory of my beloved son Malancthon Love Ruth. Fourth. I nominate and appoint Mary Robinson Wright, wife of J. Hood Wright, of New York city, and Mary Robinson Markle, wife of John Markle, of Hazleton, Pennsylvania, and the survivors of them, to be the guardians or guardian of the property and the person of my said granddaughter Sophia Yuengling Huston, they and each of them being my valued friends and having consented to act in that behalf. Fifth. I hereby nominate and appoint the American Security & Trust Company of Washington city, District of Columbia, to be the sole executor of my estate. I, Mary Eleanor Ruth, being of sound and disposing mind and memory and understanding, do make and publish this codicil to my last will and testament-I hereby revoke and annul the bequest therein made by me to the Home for Incurables at Fordham, New York city, in the state of New York, and I hereby give and bequeath the five thousand dollars (heretofore in my will bequeathed to sald Home for Incurables) to my friend Emeline Colville, the widow of Samuel Colville, now living in New York city, said bequest being on account of her kindness to my son and myself during his and my illness and my distress. In witness whereof I have hereto affixed my name this first day of June, in the year of our Lord eighteen hundred and ninety-two, and I in all other things ratify and affirm my sald will. |