27 S. Ct. 450
U.S.
1907
Me. Justice Peckham,

after making the foregoing statement, delivered the opinion of the court.

It is objected on the' part of the company that as the contract in question is, as asserted, plain and unambiguous in its terms, no reference can be made to other evidence or to documents which do not form part of the contract. The general rule that prior negotiations are merged in the terms of a written contract between the parties is referred to, and it is insisted that under that rule the various letters passing between the parties prior to the execution of the contract are not admissible.

The rule that prior negotiations are merged in the-contract is general in its nature, and, we think, does not preclude reference to letters between the' parties prior *to the execution of the contract in this case. The language employed in this contract for a deduction, in the discretion of the Chief of Ordnance, of $35 per day from, the price to be paid for each day of delaj" in the delivery of each gun carriage, respectively, taken in connection with the subject-matter of the contract, leaves room for the construction of that language in order to determine which was intended, a penalty or liquidated damages. While it is claimed that there is really no doubt as to the proper construction of the contract^ even if the contract alone is to be considered, yet; we think that much light is given as to the true meaning of language that is not wholly free from doubt by a consideration of the correspondence between the parties before the final execution of the contract itself. Under such circumstances'we think it never has been held that recourse could not be had to the facts surrounding the case and to the prior negotiations for the purpose of determining the correct construction of the language of the contract. Simpson v. United States, 199 U. S. 397-399. In Brawley v. United States, 96 U. S. 168-173, the court says: “Previous and contemporaneous transactions may be all very piroperly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may have used particular, terms.”

It is not for the purpose of making a contract for the parties, but to understand what contract was actually made, that in cases of doubt as to the meaning of' language 'actually used prior negotiations may sometimes be referred to.

There has in almost innumerable instances been a question as to the meaning of language used in that part of a contract which related to the payment of damages for its non-fulfillment, whether (the provision therein made was one for liquidated damages or. whether it meant a penalty simply, the damages to be proved up to the amount of the penalty. This contract might be considered as being one of that class where ,a doubt might be claimed, if nothing but the contract were examined. The courts at one time seemed to be quite strong in their views and would scarcely admit' that' there ever was a valid contract providing for liquidated damages. Their tendency was to •construe the language as a penalty, so that nothing but the actual damages sustained by the party aggrieved could be recovered. Subsequently the courts became more tolerant of such provisions, and have now become Strongly inclined to allow parties to make their own contracts, and to carry out their intentions, even when it would result in, the recovery of an amount stated as liquidated damages-, upon proof of the violation of the contract, and without proof of the damages actually sustained. This whole subject is reviewed in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 669, where a large number of authorities upon this subject are referred to. The principle decided in that case is much like the contention of the Government herein. The question always is,, what did the parties intend by the language used? When such intention is ascertained it is ordinarily the difty of the, court to carry it out. See also Clement v. Cash, 21 N. Y. 253, 257; Little v. Banks, 85 N. Y. 258, 266.

The Government at the time of the execution of this contract (which was dated April 4, 1898) was making preparation for the expected war with Spain, which was imminent, and which was declared by Congress a few days thereafter. The Government was evidently desirous of obtaining the construction of these gun carriages as early as it was reasonably possible, and .it was prepared to pay an increased price for speed. The acceptance of the proposal at the highest price for the delivery of the carriages in the shortest time is also evidence of. the importance with which the Government officers regarded the element of speed. There can be no doubt as to its importance in their opinion, or that such opinion was communicated to-the company. In the light of this fact an examination of the language of the contract itself upon the question of deductions for delay in delivery renders its meaning quite plain. It is true that the word “penalty” is used in some portions of the contract, although in the clause providing for the $35 per day deduction that word is not used, nor are the words “liquidated damages” to be found therein. The word “penalty” is-used in the correspondence, even by the officers of the Government, but we think it is evident that the word was not used in the contract nor in the correspondence as - indicative of the technical and legal difference between penalty and liquidated damages'. It was used simply to provide that .the amount named might be deducted if there were a delay in delivery. Either expression is not always conclusive as to the meaning of the parties.' Little v. Banks, 85 N. Y., supra; Ward v. Hudson River Building Co., 125 N. Y. 230. What was meant by the use of the ..language in question'in this case is rendered, as we think, still more certain by the manner in which the $35 per day was arrived at, as stated in the letters of the officers representing the Government, which were examined and criticised by the company before the signing of the contract. The correspondence shows that the sum was arrived at by figuring The -average difference in time of delivery between the price bid for slow delivery of the carriages and the price under the accepted bid, the department saying “that this average difference should be the prescribed penalty.”

Having this question before them and the amount stated arrived at in the manner known to both parties, we think it appears from 'the contract and the correspondence that it was the intention of the parties that this amount should be regarded as liquidated damages, and not technically as a penalty. This view is also strengthened when- we recognize the great difficulty of proving damage in a case like this, regard being had to all the circumstances heretofore referred to. It would have been very unusual to allow the company to obtain the contract for’ the construction of these carriages, and yet to place it under no liability to fulfill it as to time of delivery, specially agreed upon, other than to pay only those actual damages (not exceeding $35 per day) that might be proved were naturally and proximately caused by the failure to deliver. The provision under such circumstances would be of no real value. The circumstances were such that it would be almost necessarily impossible to show what damages (if any) might or naturally would result from a failure to fulfill the contract. The fact that not very long after the contract had been signed and the war with Spain was near its end, the importance of time as an element largely disappeared, and that practically no damage accrued to the Government on account of the failure of the company to deliver, cannot affect the meaning of this clause as used in the contract nor render its language substantially worthless- for any purpose of security for the proper performance of the contract as to time of delivery.

The amount is not so extraordinarily disproportionate to the damage which might result from the failure to deliver the carriages, as to show that the parties must have intended a penalty and could not have meant liquidated damages. If the contract were construed as contended for by the company, it would receive (as events have turned out) the highest price for the longest time in which to deliver-, which could not have been contemplated by either party. This would result from the finding that no damages in fact flowed from the failure to deliver on time.

The eighth finding-of the Court of Claims is in effect that the failure to deliver was caused in part by both parties; that the total number of days failure was 1,096 days, of which 496 were caused by the defendant’s officers, and it does not mean that the cotirt regarded itself as bound by the decision of the Chief of Ordnance as to the number of days that the claimant or the Government delayed the delivery. It found the number of days as stated, and that the transactions were so involved that whether the defendant should be charged with a greater proportion of the delays than set forth in the finding, the court could not decide on the evidence produced.

The judgment of the Court of Claims must be reversed and the cause remanded with directions to dismiss the petition.

Reversed.