It is not a "setting forth what the deputy is to do and how the work is to be performed."

It is impossible to believe that the Surveyor General's office intended, or that Scully understood from these letters, that his work was disapproved, or that no resurveys or retracements would be sanctioned or authorized save those expressly provided for in the circular of June 15, 1898. Under the circumstances, it was easy for Mr. Scully to believe that his construction of the Manual met with the approval of the Surveyor General, and it is difficult to understand how the Surveyor General could have anticipated anything but that Scully would resurvey the exterior and interior township lines, as he said he would in his letter, and that the field notes would contain the details of such surveys. It is difficult to understand why the deputy was not at least warned that his methods were improper, if that were the fact.

The default of the government contributed in a very large degree to Scully's failure to complete the surveys of townships 17 and 18 N., range 44 E., consequently Scully is not barred from recovery for what he did in accordance with the contract, even though the contract is entire. To hold otherwise is to hold that the government can take advantage of its own default. McElwee v. Bridgeport L. & I. Co., 54 Fed. 627, 629, 4 C. C. A. 525; Salmon v. Helena Box Co., 158 Fed. 300, 303, 85 C. C. A. 551; United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; Thacke v. Hernsheim (Supp.) 115 N. Y. Supp. 216; Delafield v. Village of Westfield, 41 App. Div. 24, 58 N. Y. Supp. 277, 280.

Refusal to Obey Instructions.

Complaint is made that Mr. Scully "preferred to use his own judgment as to what constituted work to be performed under the contract, rather than submit to the instructions and dictation of the department of the government which by the very terms of the contract he signed he agreed to do."

There is no evidence that Mr. Scully knowingly disobeyed, or refused to obey, any instructions whatever while he was engaged in the performance of his contract. On the other hand, there is abundant evidence of the fact that he again and again asked for instruction, which he did not receive.

Opportunities to Correct Work.

The government says:

"It must be very evident from the persistent efforts made by the proper departmental officers to have petitioner expressly comply with the requirements of his contract that they were not intentionally endeavoring to deprive him of any rights to which he was legally entitled. Every opportunity was afforded petitioner to comply with the special instructions sent him, and the evidence shows that he persistently refused such compliance."

November 29, 1902, the Surveyor General advised Mr. Scully that it was impossible to continue office work on his field notes and sketch plats, further consideration of them being merely a waste of time,

and that, if he would come to Reno, every facility would be extended him for putting his notes and sketches into such shape that they could be properly worked up, and receive the approval of the office.

In a previous letter, written in May, the Surveyor General had assured Mr. Scully that his failure to fully subdivide a township, as distinctly specified in his contract, was such a violation, both of the language and the spirit of the contract itself, as well as the established policy of the General Land Office, as to preclude the possibility of approving his work, or of its being accepted by the Commissioner of the Land Office, and that serious departures from his special instructions and the directions of the Manual rendered his entire work open to rejection or suspension. July 8, 1903, after enumerating a number of serious errors in the survey, and calling attention to the unnecessary resurveys, the failure to complete the contract, the deputy's irregular and obscure methods, and his poorly prepared notes, he was given 30 days within which to signify his willingness to correct his surveys in the field, and to furnish field notes in proper form for acceptance. July 31, 1905, after specifying about 100 errors committed by Mr. Scully in the field, the Commissioner directed that Mr. Scully be allowed 30 days within which to signify his willingness to correct his surveys in the field, and furnish field notes in proper form for acceptance.

Compliance with any of these orders involved a reperformance of work which has subsequently been admitted to be correct. Consequently Mr. Scully's refusal was justifiable.

Arrangement of the Field Notes.

If Mr. Scully has failed to arrange his notes in such manner as to meet the approval of the Surveyor General and the Commissioner of the Land Office, the fault, for the most part, lies very near the door of the Land Office itself. The maxim, "The king can do no wrong," has no application to the officials of that department. Having once made this contract, they were bound by it. They were no more at liberty to disregard its provisions than was Mr. Scully. True, Scully agreed to complete the surveys in conformity, among other things, with other surveying instructions issued by the Commissioner, and with such special instructions as he might receive from the Surveyor General. But the instructions referred to were instructions issued or received prior to or during the progress of the survey. It is unreasonable to construe the contract otherwise. To concede a retroactive efficiency and obligation to orders issued by the Commissioner subsequent to the performance of the work is to hold that these parties by agreement conferred on the Commissioner power to order proper work reperformed, and correct field notes rearranged again and again, by varying methods, and thus render execution of the contract so expensive as to be impossible.

Scully was not bound by the Manual of 1902, or by instructions issued to the Surveyor General of Montana in 1903. By the Manual of 1894 Scully was directed to incorporate his field notes of resurveys with the field notes of the subdivisions to which they relate. By the

Commissioner's own instructions of 1898, he was directed to incorporate his field notes of resurveys in a book by themselves. He followed the later order. He could not anticipate that the Manual of 1902 would reaffirm the rule of the Manual of 1894. Furthermore, the attention of the Land Office was called to his method of preparing and arranging field notes practically at the very beginning of that work in the letter of December 24, 1901, and by the specimen field notes of resurveys which accompanied that communication. Scully did all that could be expected to inform the Land Office as to his method and his construction of the Manual. No objection, no suggestion, and no instruction came. Believing, as he had a right to believe, that his course was satisfactory to the department, he iabored thereafter two months on the notes, and completed them in February. It is also charged that Scully has not placed field notes of the subdivisions of each township in a book by themselves; and notes of exteriors, base, and meridian lines in another book, as required by the Manual, p. 64, par. 13. Directions as to the preparation of field notes begin on page 60 of the Manual. The first 11 paragraphs clearly relate to the deputy surveyor. Section 12 requires him to send his notes to the Surveyor General. Section 13 requires the Surveyor General to prepare a certified transcript of the notes, and directs how it shall be done, and how it shall be arranged. Among other things, it requires field notes of base lines, standard parallels, principal and guide meridians, township exteriors, and division and meander lines, to be written in separate books, and field notes of subdivisions to be written in a separate book for each township.

Mr. Scully has failed to comply with these provisions. He contends they do not apply to deputy surveyors. The Land Office takes the contrary view. The Commissioner of the Land Office says:

"Section 13, page 64, of the Manual of 1894, directs how transcripts of original field notes shall be prepared by the Surveyor General for the records of this office, and, therefore, as a condition precedent, he must require the same form in every particular from the deputy-in other words, sec. 13 (a) to (f) apply to the deputy as well as to your office."

It does not appear, however, that the Surveyor General ever expressly required this of Mr. Scully until long after the field notes were completed. The strong argument against the Commissioner's interpretation of paragraph 13 is that it would have been exceedingly easy to extend its directions to deputy surveyors as well as to Surveyors General by express, unmistakable terms, if the Land Office had so intended. That it was not done is significant. A more important consideration is the fact the Land Office knew in December, 1901, when Mr. Scully was practically at the beginning of the work on his notes, how he interpreted paragraph 13. He was permitted to proceed with his work without a suggestion, having good reason to believe that his construction of the rule was satisfactory. It was only after his work of months had been completed that he was informed he had not segregated his notes properly, and had included therein field notes for 1581⁄2 miles of unauthorized resurveys and retracements. There

has been no attempt, either in the answer or the evidence, to deny this previous knowledge on the part of the Land Office, or to explain the failure to give Mr. Scully the information and direction, which, under the circumstances, should have been given.

[5] It is a well-established principle that, when there is a doubt as to the meaning of a contract, a party will be held to that meaning which he knew the other party supposed the words to bear. Brent v. Chas. H. Lilly Co. (C. C.) 174 Fed. 877, 881; Allen-West Com. Co. v. Patillo, 90 Fed. 628, 33 C. C. A. 194; 2 Page on Contracts, § 1127.

In Central Pac. Ry. Co. v. United States, 28 Ct. Cl. 427, it is said: "A construction given to a contract by the express declaration of one party and the silent acquiescence of the other, prior to and during the performance of a service, cannot be repudiated after a party has acted upon the faith of it."

[6] Again, the Manual and the instructions of the Commissioner, which are made a part of the contract, as well as the contract itself, were prepared by the Land Office. The rule that a contract is to be construed most strongly against the party preparing it applies to the government in a case like this, as well as to an individual. Garrison v. United States, 7 Wall. 688, 690, 19 L. Ed. 277; United States v. Newport News Shipbuilding & D. D. Co., 178 Fed. 194, 200, 101 C. C. A. 514; Simpson v. United States, 31 Ct. Cl. 217, 243. It would be manifestly unjust to hold with the Commissioner and the Surveyor General that Scully violated his contract by arranging his notes in accordance with the Commissioner's instructions of June 15, 1898, or because he followed his own interpretation of said section 13, after the Land Office had notice and abundant opportunity to set him right, and failed to do so.

It is alleged that the field notes are unintelligible, ambiguous, and confusing. In support of this the Commissioner in the last paragraph of his letter, attached to the answer, refers to two extracts from the notes, one quoted at page 49 (45), and the other at page 51 (46) of the letter. Examination shows the extracts have lost nothing of incomprehensibility in being transferred from the original field notes to the Commissioner's decision.

On pages 45 and 46 (49) of the decision there is a quotation of 56 lines. In the process of transcription the text has lost 17 punctuation marks and 2 words, 3 words have been misplaced, 5 new words have been added, and in 6 instances a different word has been substituted for the one used by Mr. Scully.

On pages 46 and 47 (51) of the decision there is a quotation of 40 lines. The copyist has omitted 15 punctuation marks and 3 words used by Mr. Scully, and in four places substituted his own word for the word used in the original notes.

On pages 41 and 42 there is a description in 42 lines of the parallel line run by the deputy to find the west boundary of township 18 N., range 45 É. This extract the Commissioner pronounces incomprehensible. Comparing it with the original text on page 58, book I of the field notes, it appears that 7 paragraphs used by Mr. Scully have been

compressed into 4; 18 punctuation points have been omitted, and à word changed.

On page (49) we find the following:

"Chains:

"80.30 Intersect E. bdry of T. 19 N. R 45 E. N. 89°18′ W. 4.02 chs. from S. E. Tp. cor (compare 3 miles S. Easting of point on Meridian line 40.44 minutes difference in azimuth)."

The Commissioner asks "What does this mean?" From the quo-. tation it appears that the deputy going north on the east boundary of the township bisects the east boundary of the township to the north. This, of course, is absurd. Referring to the original text, on page 88, book I of Mr. Scully's field notes, we find the following:

"80.30. Intersect S. bdy of T 19 N. R 45 E N 89°18′ W. 4.02 chs. from SE Tship Cor (Compare 3 miles S. Easting of point on Meridian line 4044 minute difference in azimuth) "

On page 8, line 1, of the decision, is this quotation:

"80.00 Ascending 1.00 cor found set mound of rock to make line 15 lks. E. (What does this mean?)."

Turning to page 315, book C, resurveys of section boundaries, township 14 N., range 41 E., we find:

"80.00 Ascending no cor found - set mound of rock to mark line 15 lks. E." After such mutilation, it is not at all surprising that Mr. Scully's notes are somewhat difficult to understand.

It is impossible to assume the errors of the copyist were intentional; but the fact that the honorable Commissioner in a matter so important to Mr. Scully could have used these quotations from the field notes without verification is perplexing. If such inaccuracy is exceptional in the Land Office, it should be explained; if not exceptional, why is Mr. Scully's work condemned with so much severity?

The Commissioner's Decision is Not Conclusive.

(1) The Commissioner in his decision of January 17, 1905, found more than 100 defects in the survey. He failed to take into consideration the now admitted fact that the survey was reasonably well executed, and the government has no complaint to make in relation to the work in the field.

(2) He found that Scully had not completed the subdivision of townships 17 and 18 N., range 44 E. He failed to take into consideration the undisputed fact that the Surveyor General wrote Mr. Scully October 3, 1901, that he would be justified in leaving those townships unsurveyed because the estimated amount of his contract had been exceeded.

(3) He found that Scully's resurveys, retracements, and resubdivisions being greatly in excess of any authorization, the notes thereof should be eliminated. He failed to take into consideration the fact that Scully during the whole of his work in the field was vainly asking instruction as to this extra work, and an authorization therefor, and that the Land Office as early as April, 1901, was informed that he