(211 U. S. 199) THOMAS H. PICKFORD and John H. by them in Montgomery county. The build Walter, Plffs. in Err., v. HENRY M. TALBOTT. LIBEL AND SLANDER (§ 110*)—EVIDENCE. 1. Evidence that a prosecuting attorney neglected to investigate the character of the prosecuting witness is inadmissible on the cross-examination of that officer under a plea of the general issue, as tending to rebut the allegation in the declaration in an action for libel in charging him with using his office to procure an indictment as part of a conspiracy to blackmail, that he was upright, honest, just, and faithful in the performance of his official duties. [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 110.*] TRIAL (§ 260*)—REQUESTED INSTRUCTIONS. 2. A requested instruction is properly refused where the instructions given and not objected to embodied everything contained in the instruction refused that was adapted to the testimony and to the consideration which the jury might give to its various phases. [Ed. Note. For other cases, see Trial, Cent. Dig. 651; Dec. Dig. § 260.*] [No. 13.] ing was insured for $30,000, of which, after controversy, there was paid $21,000. The libelous article was published in a paper published in the city of Washington, called the Sunday Globe, and copies circulated in the county of Montgomery, Maryland. The article was entitled, "History of a Crime in which District Attorney Talbott, of Maryland, Enacts a Leading Role." It accused Talbott of entering into a "criminal scheme" with Hudson and a man by the name of Hopp, to blackmail Pickford and Walter, plaintiffs in error, which "culminated” in the "nefarious indictment;" and, in order that the actors in it might be "unmasked," learned "after a thorough investigation." the facts were said to be stated as they were Certain facts and instances were detailed, among others the association of Hudson and Hopp, an attempt by the latter to obtain money from Pickford to stop the prosecution of the indictment, the payment of Pickford to Hopp of certain marked bills, the arrest of Hopp, the advancement of money by Talbott to Hudson, the demand of Pickford's attorney for trial of the indictment, and motions to continue the same by Argued October 26, 27, 1908. Denied No- Talbott, and the final dismissal of the same vember 30, 1908. by him when the court peremptorily ordered him to proceed. The article concluded with N ERROR to the Court of Appeals of these words: "The district attorney [Ta I the District of Columbia to review a bott] thereupon, by leave of the court, en judgment which affirmed a judgment of the Supreme Court of the District in favor of plaintiff in an action for libel. Affirmed. See same case below, 28 App. D. C. 498. The facts are stated in the opinion. Messrs. Henry E. Davis, Samuel Maddox and H. Prescott Gatley for plaintiffs in error. Messrs. Andrew Lipscomb and John Ridout for defendant in error. *Mr. Justice McKenna delivered the opinion of the court: This is an action for libel, brought in the supreme court of the District of Columbia. The plaintiff in the action, defendant in error here, secured a verdict for $8,500, upon which judgment was entered. It was affirmed by the court of appeals. 28 App. D. C. 498. The facts are set out at some length in the opinion of the court of appeals, and need not be repeated. It is enough to say that defendant in error, Talbott, was, at the time of the publication of the libel, state's attorney for the county of Montgomery, in the state of Maryland. During his incumbency of that office an indictment was found upon the testimony of one Hudson, charging plaintiffs in error with the crime of arson, for having set fire, it was charged, to a building owned tered a nol. pros. and the great conspiracy thus came to an inglorious end." It appeared from the evidence that the predecessor in office of Talbott (Alexander Kilgour) had refused to prosecute plaintiffs in error, and to him, plaintiff in error Pickford, in his testimony, attributed the declaration that the "whole thing" was a "blackmailing scheme." Kilgour, in his testimony, stated that he did not recall using the word "blackmailing," but said that in all probability he had done so, and "that it was an effort on the part of the insurance companies to use his office for the purpose of collecting their money." The declaration contained four counts, the first of which was taken from the jury. In all of them, however, Talbott alleged his incumbency of the office of state's attorney for the county of Montgomery, and that, as "such officer, he was always reputed amongst the citizens of said county" and of the United States, "and deservedly so reputed, to be upright, honest, just, and faithful in the performance of the public duties imposed upon him by his oath of office and the laws of the state of Maryland." Injury to his good name and credit was alleged. The defendants pleaded the general issue. At the trial, Talbott, being on the stand, testified that he had investigated the crime •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *206 *207 grand jury, and whether he investigated the character of the man. Under your statement that you propose by that line of testimony to prove that the district attorney acted in bad faith, I will not hear it, because I do not think it is relevant for that purpose. for which Pickford and Walter were indicted, and that it had been brought to his attention by a man by the name of Thompson, "in a vague and indefinite letter," which was followed by another letter, in which it was stated the crime was arson. He testified that Thompson was a news paper man, whom he had never seen before, and on whom he called in response to the This ruling is assigned as error here, as second letter. He also testified that Thomp. it was in the court of appeals, and it is son told him that Hudson would be a wit- attacked on the ground that "the 'good faith' ness, but did not tell him who Hudson was, of the defendant in error in procuring the but that he (Hudson) was thoroughly in Rockville indictment went to the very heart touch with the situation. Subsequently he of the action." And counsel supplement this went with Thompson to see Hudson, taking by saying that, "if it could have been made a stenographer with him. He further tes to appear by the admission of the witness, tified that he did not know whether he asked testifying in his own behalf, that, while Thompson if the matter had been brought state's attorney, he was in league with the to the attention of Mr. Kilgour. And fur-man Hudson and the insurance companies ther testified that the fire occurred during in a scheme which his predecessor denomi Kilgour's incumbency, and that he had not nated blackmailing,' the jury would have inquired of Kilgour about it. He also tes- made short work of the case when they retified that the fire occurred in September, tired to consider their verdict; and it was 1897, two years and four months before he impossible to do this except by probing the qualified. He testified further that both conscience of the witness through the mediThompson and Hudson were strangers to um of cross-examination." It is obvious, by him. At this point the court interrupted "good faith," counsel mean the truth of the the examination, and the following occurred: charge. But, in the subsequent discussion, they seem to make it equivalent to good The Court. On what line are you pur character, and contend that the examination suing this inquiry? Mr. Maddox. I am going to show, if I can, the absence of good faith in this indictment on the part of the district attorney. Thereupon, after discussion and explanation on the part of counsel for defendants, the following occurred: The Court. I think I have heard enough to know what your proposition is. I cannot see but that it is an attempt to prove the truth without pleading it. You may prove anything Pickford heard the witness say, before the article was published. Mr. Maddox. I want to prove by this witness, first by his own testimony in connection with the transaction complained of in this article, that he is not a man of good character, which he says he is. Mr. Lipscomb. I do not object by our [to your] asking him that, Mr. Maddox. Secondly. I want to show that Mr. Pickford, from what he heard the plaintiff say, had reasonable grounds to believe that he was mixed up in some way with this conspiracy. The Court. You may prove anything Pickford heard the witness say before the article was published. Mr. Maddox. I understand the court will not let me go into the inquiry as to whether or not the plaintiff knew the man Hudson before he made this presentment to the was in rebuttal of the allegation of the declaration that defendant in error "was upright, honest, and just" in the performance of his official duties. For the right to show the character of the witness, counsel adduce many cases, and assert, besides, the freedom that may be exercised in cross-examination. But the counsel who tried the case marked a distinction between the character of the witness and his good faith, and on that distinction the court made its ruling. It will not do now to identify them and claim a right that was not denied. The attorney for defendants (plaintiffs in error) was careful to say that he made no objections to questions directed to character, and the final purpose, as declared, had no reference to that. But what is the testimony and what is the argument built upon it? Counsel who conducted the defense said: "I understand the court will not let me go into the inquiry as to whether or not the plaintiff knew the man Hudson before he made this presentment to the grand jury, and whether he investigated the character of the man." It is now argued that this was an inquiry of a specific fact affecting the character of Talbott, showing that he exhibited a "reckless disregard of the rights of others," and this, taken in connection with certain facts mentioned, "shows," it is said, "a readiness on the part of the defendant in error to smirch the character of plaintiffs in error amount 80%. 602 210 PANY, Appt., (211 U. S. 176) UNITED STATES. CUSTOMS AND USAGES (§ 14*)—UNAMBIGU OUS CONTRACT. ing to recklessness such that, if the defend-| BOWERS HYDRAULIC DREDGING COMant in error were at bar for his conduct in the premises, would be held to show malice of the degree calling for punitive damages." And it is urged, after considerable discussion, that "the interrupted attempt was to show that the defendant in error, by reason of his conduct in the very matter in controversy, was not entitled to and did not have the peculiar character in respect to which he claimed to have been injured; namely, a character for probity in office. 1. Payment for removing the earth which may slide into the channel from the sides or slopes during excavation is so clearly excluded by a dredging contract as to prevent "measured in place" a giving the words trade meaning which demands a different construction, where the specifications provide for payment by the cubic yard, measWe are not able to concur in the conclu-ured in place, determined by surveys made sion. A charge of using an office to procure before dredging is commenced and after an indictment as part of a conspiracy to completion, require that the work shall be blackmail could not be justified or in any plainly located by stakes and ranges, which degree excused by the facts offered to be shall be kept continually in place, and preproved. One might be a careful and zealous clude extra allowance for excavating materiofficer and not stop to investigate the char- al different from that therein described, acters of prosecuting witnesses. Besides, or payment for work outside the designated the charge was not of careless credence of lines of excavation or below the specified an accusation of crime against innocent depth, and state that any material deposited men, but of a scheme deliberately planned, otherwise than specified and agreed upon through a "nefarious indictment," to use must be removed by the contractor at his the words of the libel, to extort money from own expense, that no guaranty is given as innocent men. We think, therefore, that the to the nature of the bottom, and that no trial court was right in rejecting the prof- claim will be made for any excess or defered evidence as irrelevant. We could not ficiency in the estimate of quantity. [Ed. Note.-For other cases, see Customs and hold otherwise, unless we should hold that Usages, Cent. Dig. § 29; Dec. Dig. § 14.*] crime and credulity are one and the same CONTRACTS (§ 170*)-CONSTRUCTION. thing, and we repeat that the mere neglect to investigate the character of witnesses is not equivalent to such disregard of the rights of others as to be tantamount to deliberate design, certainly not a deliberate design to blackmail. We say “mere neglect," because this was all the offer amounted to. It was already in evidence for what it was worth that Hudson was a stranger to Tal bott. The second assignment of error is based upon the contention that the court erroneously instructed the jury in regard to the responsibility of the plaintiffs in error for the libel. 2. A contractor for a public improvement, who, pending a dispute with the government as to his right to compensation for certain work, enters into a supplemental contract with the same terms and specifications as the original, with full knowledge of the meaning affixed by the government to the terms of such original contract, which had been insisted upon by it in carrying on previous operations, is precluded from claiming compensation under the new contract for any work of that character. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 753; Dec. Dig. § 170.*] [No. 9.] vember 30, 1908. PPEAL from the Court of Claims to review a judgment denying the claim a dredging company of a right to compensation for removing the earth which fell into the excavation from the sides or slopes during the dredging of a channel. It is not necessary to give the testimony. We will assume that it might have been Argued November 11, 1908. Decided Nocontended plaintiffs in error were not connected with either the printing or publishing of the first article or the second (there were two), or with either. The instruction asked and the instructions given by the of court are too long to be copied and difficult to summarize. They are set out in the opinion of the court of appeals, and it will be seen from them that those given by the court, which were not objected to, embodied all, as the court of appeals held, that was contained in the instruction refused, adapted to the testimony and the consideration which the jury might give to its various phases Judgment affirmed. Affirmed. See same case below, 41 Ct. Cl. 214. Assistant Attorney General Thompson and Mr. Philip M. Ashford for appellee. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *181 *180 29 SUPREME COURT REPORTER. *Mr. Justice White delivered the opinion of the court: The appellant, the dredge company, sued to recover $28,321.76. The relief sought was based on the averment that, under a contract for dredging a channel in the Christiana river and in or about the harbor of Wilmington, Delaware, made in 1899, and a supplementary contract made in June, 1901, the dredge company had excavated 260,430 cubic yards of earth, for which, at the contract price, it should have been paid the sum sued for, but that the United States, in making settlement under the contract, despite the protest of the dredge company, had declined to pay, upon the ground that excavating and removing the earth referred to was not within the contract. The pertinent facts found by the court below are these: Prior to September, 1899, the United States was engaged in excavating a channel in the Christiana river and about the harbor of Wilmington, Delaware. The work, in September, 1899, was in process of execution, under a contract between the United States and the New York Dredging Company. In the office of the United States engineer in charge of the work there existed maps or drawings showing the condition of the river prior to any work being done by the New York Dredging Company, the location of the channel in which the work was being done, and the specifications controlling the contract, as well as the progress made in the work. Of these facts the dredge company had knowledge. On September 18, 1899, the United States engineer office at Wilmington, through William F. Smith, United States agent, advertised for proposals for the dredging and removing of about 900,000 cubic yards of material in connection with the work then being done, as previously stated. In the advertisement inviting the proposals it was stated that specifications, blank forms for proposals, and all available information would be furnished on application to the engineer office. The specifications for the work in question recited: "The project, for the completion of which contracts are authorized in the law above quoted, requires the dredging of the Christiana river to a depth of 21 feet at mean low water from the 21-foot curve in the Delaware river to the upper line of the pulp works; thence to the draw pier of the Shellpot branch, No. 4, of the P., W. & B. R. R., so as to give a depth which gradually diminishes to 10 feet at mean low water at the latter-named place and the removal of shoals having less than seven (7) feet of water over them; thence to Newport,-the width to be 250 feet to the mouth of the OCT. TERM, Brandywine, 200 feet thence to the upper line of the pulp works, and 100 feet above. Work is now in progress under contracts for dredging to a depth of 18 feet up to the pulp works, the width to be made being 200 feet, and for all above-described dredging above the pulp works. The work required under these specifications is the dredging that remains to complete the project, additional to that done or to be done under the contracts above referred to until their termination or completion. It is estimated that about 900,000 cubic yards will have to be removed." The character of the work required, the method of carrying on the same, and the steps to be taken to fix the amount to become due under the contract when fully performed, were stated in the specifications as follows: "The amount of material removed will be paid for by the cubic yard, measured in place, and shall be determined by surveys made before dredging is commenced and after it is completed. All surveys and measurements are to be made under the direction of the engineer in charge, by persons employed by him for that purpose. The decision of the engineer in charge as to the amount of material excavated and removed, as well as to its location and deposit, shall be final and without appeal on the part of the contractor. "The location of the work shall be plainly located by stakes and ranges. The level of mean low water, as established by the engineer in charge, shall not be changed during the progress of the work. The contractor shall be required to supply the lumber for the necessary stakes and ranges, and shall at all times, when called upon, furnish men and boats to set them and keep them set under the direction of the inspector, the expense thereof to be included in the contract price for the dredging. "No guaranty is given as to the nature of the bottom, but, as far as it is known, it is sand, mud, clay, and gravel. Bidders *are requested to satisfy themselves upon this point and to examine all other local conditions, as it will be assumed that their bids are based upon personal information. No extra allowance will be made for excavating material differing from that herein described. "It is understood and agreed that the quantities given are approximate only, and it must be understood that no claim will be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders are expected to examine the drawings, and are invited to make the estimate of quantities for themselves. It is not expected that the actual 184 quantities will vary more than 10 per centum from the estimates. "Payments will be allowed for actual dredging to twenty-one (21) feet below mean low-water level. Work done outside of the designated lines of excavation or below the specified depth will not be paid for, and any material deposited otherwise than specified and agreed upon must be removed by the contractor at his own expense." On November 20, 1899, the claimant (dredge company), whose proposal had been accepted, entered into a contract with the United States through General William F. Smith, United States agent, for the performance of the additional dredging, in conformity with the advertisements and specifications referred to in the preceding findings. It was provided in the contract that "the said Bowers Hydraulic Dredging Company shall furnish all labor, machinery, and appliances necessary or proper for the faithful execution of the contract, and shall do the work called for, and in all respects carry out and comply with the said specifications for dredging." The sum to be paid was fixed by the contract at 10% cents for each and every cubic yard of material dredged, "measured in place," the said price including removal and redeposit. Presumably, in consequence of knowledge on the part of the dredge company of a refusal by the government to pay the New York Dredging Company for the work being done by it for the removal of any earth from the excavated channel, derived from the sliding from slopes of the same, the dredging company, before commencing work, addressed a letter to General Smith, en gineer in charge, requesting to know whether its contract would be construed as excluding payment for removing such earth. General Smith replied "that payment will be made for the quantity of material removed within the designated lines of excavation as determined by measurement before and after the dredging, and that such measurement does not include material which comes in from the sides during the progress of dredging." The letter stated: "I deem it proper to add that this is in conformity with the instructions received from the chief of engineers on the subject." The dredge company thereupon replied, protesting against this construction, declaring that it was not bound thereby, and that its performance of the work must not be construed as an acceptance of the correctness of such interpretation. The work was commenced. Whenever a payment was made under the contract, the dredge company, in receiving the same, as serted that it was entitled to be paid for removing any earth which had fallen into' the excavation from the slopes and which had been removed by it, and, on payment for such work being refused, it protested. On June 21, 1901, while the work on the contract was proceeding, the dredge company made a supplementary contract, increasing the amount to be by it excavated, in accordance with the terms and specifications of the prior contract, from 900,000 to 1,300,000 cubic yards. As the work thereafter progressed under both contracts payments were continued to be made by the government and received by the dredge company under protest, as before stated, until the work under the contracts was finally completed. The court below found: "The amount of material that fell or slid from the sides or slopes of the vertical walls in front of the dredge and that was removed thereby along with the excavated material within the designated lines for dredging as provided by the contract was more than 30,000 cubic yards, which, at the contract price of 10% cents per cubic yard, would amount to over $3,000." In the opinion delivered by the court below it was said: "We are therefore of the opinion that the specifications, which are made part of the contract, are plain and unambiguous, and that they not only furnish the basis of measurement in place of the material to be excavated, but that the measurements made by the engineer in charge were in strict accord therewith. This being so, any other method of measurement in place, even though customary, is excluded by the terms of the contract, and therefore expert testimony is not admissible to explain language that needs no explanation." [41 Ct. Cl. 229.] And for these reasons the right of the dredge company to recover was denied. A new trial was asked, among others, on the ground that error had been committed in not finding the trade meaning of the words, "measured in place," and because the amount of cubic yards of earth which had slid in from the sides or slopes of the excavation while the contract was being performed, and which had been removed by the company, had not been fixed at 260,430 instead of “as above 30,000,” as stated in the findings. In addition a request was made that the findings be amended so as to qualify the finding that the price paid should be 10% cents for each and every cubic yard of material dredged, measured in place, by adding the words, "the same being the trade meaning or understanding of the words 'measured in place.'" In addition it was asked that the finding as to the amount of cubic yards removed of matter that fell from the sides or slopes be increased from above 30,000 to |