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ted to the quartermaster at Fort Leavenworth, for his inspection, and such only to be used as he might accept as fit for the trip.
4th. To employ at least one man in addition to the teamsters for every five wagons of each train; each man so employed to be well armed and provided with ammunition.
5th. To have a train in readiness to receive freight, and to start from Fort Leavenworth at any time between the 1st of May and 31st of July, in the years 1851 and 1852, due notice having been previously given to him, by the quartermaster, of the amount of stores to be transported, and the time when the train must be in readiness to start.
6th. To pay at the rate of first cost, with fifty per cent. in addition for any damage or deficiency, at the point of destination, in the property delivered to him for transportation, unless it shall be satisfactorily shown by the report of a board of officers, which the quartermaster shall call, that the damage or deficiency was unavoidable.
And Colonel Swords agreed:
7th. That said Clymer should be paid, at Fort Leavenworth, at the following rates: $12 84 per 100 pounds, for all freight delivered by him at Paso del Norte, Texas, $12 50 per 100 pounds for all delivered by him at Dona Ana, New Mexico, and $8 83 per 100 pounds for all delivered at Fernando de Taos, New Mexico, on his producing the receipt of the quartermaster of the post at which the stores were delivered, for the quantities delivered in good order ; or if damaged, that the damage was reported on by a board, as provided for in the 6th article of the contract.
It further appears that, on the 24th of April, 1851, Mr. Clymer entered into an agreement with David Waldo, Jabez Smith, and William McCoy, whereby, in consideration that the last named parties had become his sureties in a bond under a penalty of $50,000 (now on file in the Second Comptroller's office,) for the faithful performance of his contract with Colonel Swords, before recited, of the 18th of April, 1851, said Clymer transferred and set over to them all the benefit accruing from said contract, and all advantages and privileges appertaining, except to the amount of transportation of 150,000 pounds, or 75 tons, to the post of Paso del Norte, which amount was to be transported alone by said Clymer, and to be for his own particular use and benefit, and under his entire control. It was also understood that each of the parties to said agreement were to enjoy the privileges and benefits therein set forth, during the continuance of the contract with Colonel Swords, to wit: for two years from the 1st of May, 1851.
It was further agreed that said Clymer was to receive and transport the stores intended for the post of Taos, leaving the said Waldo, Smith & McCoy to transport only all the stores to Paso del Norte and Doña Ana, except the 150,000 pounds retained to be transported to Paso del Norte by said Clymer. By this agreement said David Waldo & Co. were to have transported to Paso del Norte stores to the amount of 95 tons, or 190,000 pounds, and to Doña Ana 30 tons, or 60,000 pounds.
By the contract and sub-contract, therefore, made under the inducements before mentioned, Clymer and his associates evidently had
a right to expect, and no doubt did expect to have the following amounts of freight for each of the years 1851 and 1852, to wit: To Paso del Norte, Clymer, 150,000 pounds, at $12 84 per 100 pounds.......
$19, 260 00 To Paso del Norte, Waldo & Co., 190,000 pounds, at $12 84 per 100 pounds ....
24,396 00 To Taos, Clymer, 60,000 pounds, at $8 80 per 100 pounds .....
5,298 00 To Doña Ana, Waldo & Co., 60,000 pounds, at $12 50 per 100 pounds.....
Total per annum.
Total for the two years 1851 and 1852.............
It should have been before stated that Doña Ana was included in Clymer's contract in consequence of the express invitation to that effect of Major E. A. Ogden, assistant quartermaster at Fort Leavenworth, as appears from a letter from that officer addressed to him at Westport, Missouri, and now in his possession, dated February 26, 1851.
From the report of the Quartermaster General, and the accounts of Major E. À. Ogden, on file in this office, it appears that there were delivered the claimant for transportation under the contract, to Pas del Norte, in 1851, 150,141 pounds of freight, with which he left Fort Leavenworth on the 16th day of May, and delivered his charge in good order and condition at Paso del Norte on the 26th of August following, for which he was paid by Messrs. Ogden, at Fort Leavenworth, on the 15th of November, thus showing that it took six months to perform the journey back and forth. In the same year there were also delivered to Mr. Clymer 61,135 pounds of stores for transportation to Doña Ana, which by a subsequent agreement he delivered in good order at Fort Fillmore, fifteen miles south of Doña Ana, on the 25th of October, having left Fort Leavenworth on the 30th of July, and for which he was paid at the latter place, on the 24th of January, 1852, nearly six months having been occupied in performing the journey.
It does not appear that the government officers offered Clymer and his associates any more freight during the year 1851, so that there was a deficiency in the minimums stated in the advertisement of Colonel Swords, to wit:
To Paso del Norte, (Waldo & Co.,)189,859 pounds, or nearly 95 tons. To Taos, (Clymer, 60,000 pounds, or nearly 30 tons.
It does not appear that the above deficiency was ever offered for transportation to Clymer, or that he was unable to have transported it had it been so offered, according to his contract; the value of which, according to the rates agreed on, would have been: To Paso del Norte.....
$24,379 89 To Taos......
The papers do not show, however, that the contractor was dissatisfied with the amount of freight offered in 1851, or made any complaint on account of the deficiency.
On the 22d of March, 1852, Major Ogden, assistant quartermaster at Fort Leavenworth, addressed a letter to Mr. Clymer, which is herewith, stating that he had just received a telegraphic despatch from the Quartermaster General, directing him to inform him (Clymer) that he would not be required during the then coming season to transport any stores under his contract of the 18th of April, 1851. Upon the receipt of this notice of the abandonment of the contract on the part of the government officers, Mr. Clymer appears immediately to have addressed the letter herewith, dated April 1, 1852, to the Quare termaster General, in which he states that he had prepared to send out to Paso del Norte a train of thirty wagons, to transport one hundred and fifty thousand pounds, and that by the fifth article of his contract he was fully authorized to make the outfit, which he had done in good faith to the government. That if he was not permitted to use the outfit that year, as the contract contemplated he should do, he would lose much, and be put to great stress and heavy sacrifice on the property. That he expected to be governed by the meaning of his contract of the 18th of April, 1851, unless the Quartermaster General might think proper to arrange in some way to save him from heavy loss.
It thus appears that in none of the stipulations of the contract was there a failure on the part of Mr. Clymer. He faithfully transported all the freight that was offered him in the year 1851, and for some small amount of stores lost on the journey he paid the first cost, with fifty per cent, added, as he had agreed upon; and he gave a bond with security in a heavy amount, to secure the government for any damage it might sustain arising out of the transaction.
The question, then, is, what damage has he sustained in consequence of the alleged failure on the part of the government, through its officers, to perform its obligations under the contract? What those obligations were, and the extent of its liability to Clymer for indemnity?
It has already been shown that Clymer transported 150,000 pounds of stores to Paso del Norte in 1851; that by the contract the train must have consisted of at least 30 wagons, 180 yoke or 360 oxen, or 300 mules, and 36 armed teamsters; that he left in May, and did not return until November; and there is little doubt that of the wagons and animals which escaped the casualties of such a journey, and were brought back by him, the former had to be repaired, and the latter wintered for the service he had every reason to expect in the spring of 1852.
A paper herewith, numbered 5, shows that to supply deficiencies in his means of transportation, occasioned, it is fairly inferred, from casualties in the preceding year, on the 24th of March, 1852, Clymer agreed to purchase of Keller & Russell ten wagons at $150 each, to be delivered by the 4th of April then next, and 45 yoke or 90 cattle, at $55 per yoke, with good walnut yoke, with ring-staple with each yoke, and 40 half-inch ox-chains, to be belivered at the commencement of the grazing, the whole cost being $3,475; and that on the 24th of April, 1852, twenty-four days after he was notified by Major Ogden that he could have no transportation under his contract, he paid Keller & Russell $500 for cancelling his agreement.
From the depositions of Nathan H. McKenney, Allen Clymer, and Aaron Oxley, believed to be credible witnesses, it appears that Clymer had a train of 30 wagons with every necessary, complete and in readiness, in time for the transportation to Paso del Norte in 1852, according to his contract. That the animals used the preceding year and brought back had been wintered at his expense, and that McKenney, an experienced and competent wagon-master, had been in his continuous employ from the spring of 1851, at $80 per month, with the express understanding with Clymer that he was to conduct a train for him in 1852. That the large ox-wagons necessary for transportation to such remote and distant points are unsuited to ordinary business; that in May, 1852, cattle had greatly declined in value, and that, in their opinion, by the refusal to furnish freight, Clymer was greatly injured, and sustained great damage on account of the complete breaking up of his train, the disbanding of his teamsters, and loss of profits. All the witnesses were in the employ of Clymer, in the business of freighting, and speak from personal knowledge. McKenney declares that the trip in 1851 yielded Clymer, in his opinion, a profit of 50 per cent., and that a similar one in 1852 would have been equally, if not more profitable. In his deposition of April, 1853, he makes a calculation of what, in his opinion, would have been the profits of the trip of 1852, which he sets down at over $14,000, in which opinion he is confirmed by the deposition of Oxley.
In my opinion nothing can be clearer than that Clymer was greatly damaged, and a heavy loser from not having been furnished with freight to Paso del Norte in 1852, which the whole history of this transaction shows he had every right, both legal and equitable, to expect; in the loss of the expense of wintering from 300 to 400 head of cattle in the winter of 1851-'2; in the hire of his wagon-master, teamsters, &c., all of whom he had to compromise with, disband, and discharge—of $500 in the purchase of wagons and oxen from Keller & Russell, and upon the sale of his wagons, cattle, and outfit, for it does not appear that he was subsequently employed as a freighter in the service of the United States, or of private individuals. These losses were actual, and must have been ruinous to any but heavy capitalists. The damages he may have sustained on account of profits are only inferential, depending upon circumstances, wholly without and beyond the control of the claimant or his agents.
The profits may have been as much or more than are estimated in the deposition of McKenny and Oxley; but in a service without the limits of law or civilization, and beset on all hands with formidable dangers, from the elements of nature and hostile and marauding savages, the trip may have proved equally or more disastrous in every respect than the violation of the contract with Colonel Swords. The anticipated profits, therefore, from their uncertainty, should, in my opinion, but incidently enter into the consideration of the damages sustained by Clymer, from the violation of his contract. It is true the weight
of evidence is in his favor, from the success of the preceding year, and the fact that the year 1852 was equally good for freighting; but, for the reason above mentioned, it is by no means conclusive.
What were the obligations of the government under the contract, and its liability in case of failure, to the contractor for indemnity?
It is a settled principle that written contracts must be construed upon their face, and that parties having reduced the terms of their contract to writing, must abide by them, unless it can be conclusively. shown that by fraud or mistake the written agreement does not correctly embody the terms of the contract. The report of the Quartermaster General shows that as early as October, 1850, he was advised by the Commissary General that transportation would be required during the years 1851 and 1852, for 934 tons of army stores, from St. Louis to various posts in New Mexico and on the Rio Grande, including those of Paso del Norte, Doña Ana, and Taos; that in December, 1850, Colonel Swords, the quartermaster at St. Louis, was furnished with the requisition of the Commissary General, and directed to make contracts for two years for half the quantities mentioned therein. From this proceeded the advertisement of Colonel Swords, for half the quantities as directed by the Quartermaster General, as the minimum to be transported, with the distinct notice that every contractor should be prepared to carry larger quantities, of which due notice should be given. This “due notice,' embodied in the contract, seems to me to have reference entirely to the “larger quantities,”, above and beyond the minimum which had already been fixed and determined by the terms of the advertisement, upon which it is impossible to deny that the contract was founded, as all the material parts of the former, except the specific quantities, are incorporated in the contract, particularly in the fifth article, where the language of each is nearly identical. Colonel Swords’ letter to Clymer, of the 15th of January, enclosing a copy of the advertisement before its publication, and his letter of the 15th of February, accepting Clymer's bids, shows that the contract was to be made in accordance with the terms of the advertisement.
I cannot separate them, and must conclude that the omission to inBert in the contract the specified minimum quantities, and the provision for larger, was a mistake, not to be taken advantage of by the United States to the prejudice of the contractors. I am, therefore, of opinion that Clymer, having complied with all the stipulations entered into on his part, the government was bound to furnish the minimum quantities for transportation mentioned in the advertisement, and larger, upon due notice of the amount to be transported, and the time when the trains must be in readiness to start; and having failed to do so, is liable to the claimant for whatever damage he may have sustained in consequence.
The amount of damages which Mr. Clymer is entitled to receive at the hands of the government is quite another and more difficult ques
As before remarked, it is next to impossible to ascertain, with any degree of accuracy, what would have been the probable profits which he would have made on the transportation of the stores, had