United States v. Republic Bag & Paper Co.

250 F. 79, 162 C.C.A. 251, 1918 U.S. App. LEXIS 1852

• Court: Court of Appeals for the Second Circuit
• Decided: March 14, 1918
• Docket: No. 170
• Status: Published

Opinions

LEARNED HAND, District Judge

(after stating the facts as above). [1] The-ftrst question is what the literal meaning of the words is. The express undertaking of the defendant is that it shall “furnish * * * so much of the estimated quantity as may be ordered by the party -of the second part [the Public Printer], whether more or less than the estimates stated in the proposal.” This is the only language in the contract touching quantity at all. If the phrase had been omitted “whether more or less than the estimates stated in the proposals,” we take it that there Could have been no question that the undertaking' would have been limited by the estirriáte as a maximum.

[2] The plaintiff urges that words like “more or less,” when used of an amount otherwise ascertainable than by the estimated quantity, do no more thaiL indicate what the parties at the time honestly suppose the quantity will be, and. this is quite true. Such words do not themselves constitute any measure of quantity, since by hypothesis that is defined by other terms. Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622; Marx v. American Malting Co., 169 Fed. 582, 95 C. C. A. 80 (semble); Grant v. United States, 7 Wall. 331, 19 L. Ed. 194, Yet, when the only measure is the estimate itself, they allow only a small latitude of variation, much within that here asserted. Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Pine River Logging Co. v. United States, 186 U. S. 279, 22 Sup. Ct. 920, 46 L. Ed. 1164; Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242, 74 C. C. A. 462. In the contract proper there was no outside measure but- the estimated quantity. There might have been, it is true, if the language had been “all paper required by the party of the second part, whether more-or less than the estimates stated in the pro-' posal,” but it was not that. On the contrary, it was “so much of the estimated quantity,” thus making the outside measure the estimated quantity, and not the requirements of the Public Printer. Therefore, taken by itself, the contract seems to us to support the defendant’s contention.

The plaintiff, however, very properly argues that the contract is not to he taken by itself, but in conjunction with the Public Printer’s proposal. In this proposal appear not only an advertisement, but certain definitions of the quantity to be delivered. The advertisement reads:

“Contracts will be entered into for supplying tlio quantities required, whether more or less than the estimates.”

No. 13 of the “Instructions” provides:

“The subjoined schedule specifies the quantity as nearly as can be estimated, * * * but the contractor must furnish the quantity which may he needed, whether more or less than the estimate.”

No. 39 provides:

“The successful bidders will be required to enter into a contract to furnish the quantities required, whether more or less than the estimates.”

If these stood alone, we should be disposed to say that the measure adopted was the quantity “required” or “needed,” and to hold that Brawley v. United States, supra, applied. That would invite the other questions raised, affecting the validity and mutuality of the contract. Since, however, we have two conflicting clauses to construe, it seems to us we must adopt that which occurs in the actual undertaking of the parties, rather than in their preliminary negotiations. Therefore we conclude that the contract proper should prevail.

Just why the contract varied from the proposals we cannot, of course, surmise, but we cannot with justice disregard the fact that it did vary, and that the variation was big with consequences which, had the defendant been faced with them, we should not assume it would have accepted. If an ambiguity has resulted, we may fairly apply the canon contra proferentem, and throw the burden of interpretation upon him who by the variation put the matter in doubt.

Judgment affirmed.