ERROR to the district court of the United States for the western district of Pennsylvania. In the district court for the western district of Pennsylvania, the administrators of William Noble, the defendants in error, instituted an action of covenant against the plaintiff in error upon certain articles of agreement in the following terms. 'Article of agreement entered into this 24th day of February, between William Noble, of the city of Cincinnati, of the one part, and William Robinson, Jun., of the city of Pittsburgh, of the other part, witnesseth: That the said Noble hereby agrees, stipulates, and binds himself, to and with the said Robinson, to transport and deliver to said Robinson, in the steamboat Paragon, a certain quantity of subsistence stores for the use of the United States army, supposed to amount to three thousand seven hundred barrels, estimating one half of the quantity of stores as flour barrels, and the other half as whiskey or pork barrels; the said Robinson delivering the one half of the same between the 1st and 10th March to said Noble, at Cincinnati, and the other half by the 30th of March, at the usual place of deposite, near the mouth of the Ohio; the delivery of which stores is to be made and completed in the order in which they are received at the town of St Louis aforesaid, on or before the 15th day of April next ensuing. In consideration whereof, the said Robinson hereby agrees and binds himself to pay to the said Noble, one dollar and fifty cents per barrel, one half whereof is to be paid on the delivery of said stores at St Louis, in specie funds, or their equivalent, and the other half in Cincinnati, in the paper of banks current therein, at the period of the delivery of the said stores at St Louis.' The declaration averred that in the month of March 1821, he, the said Noble, received on board the steamboat Paragon all the stores and lading which were offered by Robinson, both at the city of Cincinnati, and the usual place of deposit near the mouth of the Ohio river, and conveyed all the stores delivered on board the said boat, according to the stipulations in the articles of agreement, to the town of St Louis, and delivered those to Robinson in person, and also avowed performance of all the agreements, covenants and stipulations in the articles of agreement. The declaration then proceeds to assign as breaches of the articles of agreement, that Robinson did not deliver one half of the said amount of thirty-seven hundred barrels of army subsistence stores, or any other equivalent freight, to Noble, or on board the aid steamboat Paragon, at Cincinnati, between the 1st and 10th of March in the year 1821, although Noble and the boat were, during that time, ready and waiting to receive the same; and Robinson did not, on or before the 30th day of March in the year last aforesaid, nor afterwards deliver to Noble, at the usual place of deposite, near the mouth of the Ohio river, the other half of the said three thousand seven hundred barrels of army subsistence stores, or on board of said boat at said last mentioned place, although the boat was there ready and waiting to receive the same, after the said 30th of March in the year last aforesaid; and although Noble has frequently, before and after that time, requested the said Robinson to furnish the stores and freight stipulated for as aforesaid; and further, that Robinson hath not paid to the said Noble, nor to his use, the said sum of one dollar and fifty cents per barrel on the delivery of such amount of said stores as were actually carried in said steamboat and delivered in all respects, in accordance with the tenor of the articles of agreement at St Louis, in specie or otherwise; nor hath Robinson paid to Noble, in any money, by the barrel, according to the price stipulated as aforesaid or otherwise, for such amount of said army subsistence stores as Robinson was, by the tenor of said articles of agreement, bound to furnish for freights to St Louis, as above recited, but, on the contrary, hath wholly refused to pay the amount stipulated by him to be paid as aforesaid, in the manner or at the times above mentioned, or at any other times, or in any other manner. And Robinson hath further neglected and omitted to perform, in manner by him agreed as above mentioned, the stipulations and covenants made as aforesaid, but the same hath broken and not kept, contrary to the tenor and spirit of said articles of agreement, whereby the said Noble not only was deprived of the amount agreed to be paid by Robinson in manner aforesaid, but also of other great gains and profit which might and would otherwise have arisen and accrued to him during the time of detention of steamboat, caused by the non-performance, by Robinson, of his agreements aforesaid. On the trial of the cause, the counsel for the defendant prayed the court to charge the jury: 1. That it is an inflexible rule in the construction of contracts, so to interpret them as to effectuate the intention of the parties. That it is within the province of the jury to determine what the intention was at the time of the execution of the instrument, according to the rules of construction the court may advise. 2. That the contract upon which the present action is instituted, is not a contract of affreightment by charter party. There is no hiring of the ship. It is a contract for the conveyance of merchandise in a general ship. That the plaintiff cannot recover damages according to the number of tons the ship was capable of containing; but that his damages must be limited, according to the terms of the contract, to the actual freight earned upon the cargo delivered. 3. That the words, the spirit, and meaning of the contract preclude the plaintiff from recovering from the defendant more than the actual value of the Miami Exporting Company paper at the time it became due, according to the scale of depreciation. 4. That, under this contract, there was no legal obligation upon defendant to tender to plaintiff the amount due him in the depreciated currency of the Miami Exporting Company, in order to save himself from the payment of the numerical value of the notes, inasmuch as the defendant reserved to himself the right either to pay in the depreciated currency, or in its equivalent. 5. That the plaintiff cannot recover, in the present action at law, the freight for goods actually transported, and damages for the breach of the contract for non-delivery of all the stores defendant contracted to deliver for transportation. The court charged the jury upon these points: 1. It is certainly true that the intention of the parties to a contract must govern its construction, provided that no violence is done to the rules of law in seeking to effectuate such intention, and it is the province of the jury to judge, from the language of the contract, what that intention is, subject to the opinion of the court as to its legal effect. 2. The contract which is the subject of the present suit, is not a contract of affreightment by charter party; and, in strictness, the plaintiff cannot recover damages according to the number of tons the boat was capable of containing. The rule of law, in cases where there has been a failure to furnish the stipulated freight, and there exists no charter party, is for the jury to take all circumstances into consideration, and to make an allowance for any freight which the master had it in his power to transport in addition to that which was furnished. If the lading should not be complete without the default of the master, the rule is to estimate the freight by means of an average, so as to take neither the greatest possible freight, nor the least, and such average is the proper measure of damages. 3d and 4th. The actual specie value of the paper of the Miami Exporting Company, at the time it became due by the contract, is not the true measure of damages. It was made, and to be executed in the state of Ohio, and the laws of that state must therefore govern this case. The defendant having failed to tender to the plaintiff the paper of the Miami Exporting Company, or its equivalent, at the time mentioned in the contract, and the plaintiff having performed all he had covenanted to perform, is, by the laws of Ohio, entitled to recover the numerical value of the paper of the Miami Exporting Company, in specie, with interest. In answer to the last point, the court said, that the plaintiffs claim, not only for the freight actually transported and delivered, but damages for failing to furnish as much freight as the article stipulates for; if the testimony supports their claim, they may, in the present action, recover damages for such failure. Whereupon the counsel for the defendant excepted to the opinion of the court upon the several points aforesaid, and requested the court to seal a bill of exceptions, which was accordingly done. The jury rendered their verdict, finding in favour of the plaintiff the sum of three thousand three hundred and ninety-one dollars and fourteen cents; upon which verdict the court entered judgment; and the defendant prosecuted this writ of error. The case was submitted to the court on printed arguments, by Mr Watts, for the plaintiff in error; any by Mr Fetterman and Mr Colwell, for the defendants. Mr Watts, for the plaintiffs in error. Noble's administrators were plaintiffs in the inferior court, in an action of covenant, upon a certain agreement, under the seals of the parties. From the face of this paper, as well as from evidence extrinsic, it appears that Robinson was a contractor with the United States for the supply of subsistence stores for their troops stationed at a north west post on the Mississippi river; and that Noble was a freighter, who navigated the rivers Ohio and Mississippi in steam and flat boats. As one half of the stores were to be delivered by Robinson for transportation at Cincinnati, and the other half at the mouth of the Ohio–St Louis being the destination: there appear to be two subjects of contemplation presented to the mind of said Robinson at the time he executed the agreement: 1. The usage prevailing between contractors of the United States and the goverment; the latter reserving the right to restrict the quantity of supplies, by giving to the contractors a reasonable notice of the same. 2. The loss arising from the perils of the river, in navigating it, at that early day, either in steam or keel boats. Hence the caution observed by said Robinson in the introduction of the terms of his agreement. The stipulation is, on the part of Noble, to carry subsistence stores, supposed to amount to about 3,700 barrels, leaving the covenant, on the part of Robinson, implied, rather than clearly expressed, to deliver any number of barrels for shipment; and that number entirely contingent upon his interests, controlled, as they were liable to be, by the United States, and the dangers of the river. The testimony of Richard Miller proves that one half of the stores was delivered at Cincinnati, and the reason why the other half (two thirds or three-fourths being delivered) was not ready at the mouth of the Ohio, was the loss of a flat boat laden with them, and under the direction of said Noble. Notwithstanding this misfortune of Robinson, it is seriously contended by the learned counsel of Noble, that, under the terms of his agreement, Robinson will be obliged to pay for the freight of goods that were sunk on their passage to the place of delivery, and never carried by Noble. But the learned judge, in his charge to the jury, stretched the point farther and wider than the conscience of the counsel would allow them to go. For, although he admits there was no 'charter party,' still he asserts the irreconcilable doctrine, that the rule of damages, where there has been an infraction of the agreement, would be to find an average number between what was actually furnished and what the boat was capable of containing; so that, if the capacity of the 'Paragon' exceeded 6,000 barrels, the average number, according to the charge of the court, and which governed the jury, would be far beyond even the 3,700 barrels. By referring to the account of Robinson, the court will see how far a blind chance has carried her votaries beyond the limits of justice. The second reason assigned for the reversal of the judgment arises out of the misconstruction of the court of that part of the agreement relating to the payment of money. It is proved by the deposition of Spencer, that the current value of the bills of the Miami Exporting Company paper, on the 1st April 1821, was sixty-six and two-thirds cents in specie. Cincinnati is about 800 miles from St Louis, and the mouth of the Ohio not more than one-fourth the distance; hence the stipulation, on the part of Robinson, to pay one dollar and fifty cents per barrel for transportation from Cincinnati, and the equivalent of one dollar and fifty cents in the depreciated currency, being one dollar, from the mouth of the Ohio to St Louis. This intention of the parties is the more apparent, by comparing the different clauses of the agreement. In the first, Robinson contracts to pay in 'specie funds;' and in the second, 'in the paper of banks current at Cincinnati at the period of delivery of said stores at St Louis;' and, to put the intention beyond controversy, it is further added, 'it is understood that the payment to be made in Cincinnati is to be in the paper of the Miami Exporting Company, or its equivalent.' The term 'equivalent,' (being compounded of oequus and valeo) both in its original and ordinary signification, means what this depreciated currency was worth, equal in value; and cannot be restrained to what it is contended it is, to bank notes of numerical value. In the general derangement of currency of 1821, Mr Robinson clearly reserved the right to pay either in the paper of the Miami Exporting Company, in other depreciated paper, or the value of said Miami Exporting Company's paper in April 1821, in specie. The case relied upon by the learned judge who ruled this cause will be found in Wilcox's edition of Ohio Reports, 87, 88 Morris v. Edwards. And, although dissenting from the opinion of Judge Hitchcock, and yielding to that of Judge Burnet, it is considered that the opinion of Judge Hitchcock is irreconcilable with that of the district judge in the present cause. It is based upon the principle that the amount of the indebtedness of the drawer of the note was liquidated and fixed at two thousand dollars; and that, if it had been intended as a promise to pay numerically, or the value of the currency, it ought so to have been expressed; and the judge infers, from the absence of the expression, that it was not so intended. In the case of Morris v. Edwards the evidence of depreciation was excluded from the jury; in this case, it was admitted without objection. Differing as that case does essentially from the present, the attention of the court is particularly invited to a review of it. To sustain the positions that depreciated bills are not money, not a legal tender, and not negotiable, but a mere commodity, the attention of the court is requested to the cases of M'Cormick v. Trotter, 10 Sergeant and Rawle 94;
The opinion of the court was delivered by: The learned judge therefore has erred in his charge to the jury, upon the several points presented; and injustice has been done to the plaintiff in error.