The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 81
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UNITED STATES V. REPUBLIC BAG & PAPER CO.
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
The plaintiff, however, very properly argues that the contract is not
to be taken by itself, but in conjunction with the Public Printer's pro-
posal. 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 the 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 be 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, apphed. 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.
WARD, Circuit Judge (dissenting). The court construes the con-
tract as one for the estimated quantity of paper as a maximum, whereas
it seems to me to be one for the government's actual requirements.
The difference is one of construction of writings.
Section 3 of Act Jan. 12, 1895, c. 23, 28 Stat. at L. 601 (Comp. St.
1916, 6957), requires the Public Printer to advertise-
"for sealed proposals to furnish the government with paper, as specified in the
schedule to be furnished to applicants by the Public Printer, setting forth in
detail the quality and quantities required for the Public Printer."
The advertisement of the Public Printer stated:
"Contracts will be entered into for supplying the quantities required
whether more or less than the estimates for a period of six months or one
year commencing March 1, 1916.
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/96/: accessed March 24, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.