tiff's expenditures upon which the damages was the principal subject-matter of plaintiff's caused by defendant's breach of the contract wore to be computed. contract, but also a like percentage of the amount earned in setting granite under the [7] 3. The next ground of error upon which accepted option in paragraph 25. The court the Circuit Court of Appeals based its de- held that the provision for monthly installcision was an instruction given to the jury, in ments related only to the former, and that as substance, that if defendant failed to make to the granite work plaintiff was not entitled payments on account as called for by the con- to payments on account in advance of its tract—“a substantial failure, amounting sub-completion. In our opinion, however, defendstantially to the withholding of the whole payment, not necessarily the whole payment, but the bulk of the payment”—such failure constituted a breach on the part of defendant justifying plaintiff in stopping work and entitling it to recover damages from defendant; and the refusal of a requested instruction to the effect that "the delay of defendant to make payments on estimates, in the absence of a positive refusal to pay anything, was not ground for rescission or termination of the contract by plaintiff," and that plaintiff's remedy was to recover interest on the deferred payments. ant's acceptance of the option to call upon plaintiff to set the granite blocks did not make a separate contract, but merely added something to the work that plaintiff was to do under the contract previously made; and by necessary inference it subjected the granite setting to the appropriate general provisions respecting the method of performance and the time when the work was to be paid for. Were it otherwise, the requisition of March 9 could not be rejected merely on the ground that it called for a payment for granite work.* We say this because there was clear evidence The Circuit Court of Appeals very proper--apparently uncontradicted, and at least sufly held that in a building or construction con- ficient to go to the jury-tending to show that tract like the one in question, calling for the the granite setting was substantially comperforming of labor and furnishing of ma-pleted by the early part of February, and that terials covering a long period of time and involving large expenditures, a stipulation for payments on account to be made from time to time during the progress of the work must be deemed so material that a substantial failure to pay would justify the contractor in declining to proceed. In addition to the provisions of paragraph 12, already referred to, the concluding paragraph of the contract was as follows: "And the said general contractors hereby promise and agree with the said subcontractor to employ, and do hereby employ him to provide the materials and to do the said work according to the terms and conditions herein contained and referred to for the price aforesaid, and hereby contract to pay the same at the time, in the manner and upon the conditions above set forth." because the few blocks remaining to be set [9, 10] 4. The court held the requisition of March 9 to be defective upon the further ground that it was based upon the unit price of $1.07 per cubic foot, pursuant to the understanding said to have been arrived at between the parties on February 2, instead of the actual cost of the work erected in the building as required by paragraph 12 of the contract. It was held that since the complaint alleged that plaintiff's demands for payment were made “in accordance with the As is usually the case with building contracts, it evidently was in the contemplation of the parties that the contractor could not be expected to finance the operation to completion without receiving the stipulated pay-contract," evidence to show the agreement ments on account as the work progressed. In such cases a substantial compliance as to advance payments is a condition precedent to the contractor's obligation to proceed. Canal Co. v. Gordon, 6 Wall. 561, 569, 18 L. Ed. 894; Phillips & C. Construction Co. v. Seymour, 91 U. S. 646, 649, 23 L. Ed. 341. [8] But it was held that defendant's refusal to pay was justified because plaintiff's requisitions were not made out in accordance with the provisions of the contract. There were but two requisitions in evidence, one dated December 30, 1911, the other March 9, 1912. Both were held defective, in that they included not only 85 per cent. of the estimated amount of the concrete construction, which | made on February 2 about unit prices was not admissible without an amendment of the complaint setting up a modification of the contract. This view cannot be upheld. The allegation quoted from the complaint did but touch upon the performance of a condition precedent, concerning which the former niceties of pleading no longer obtain. And besides, evidence of the agreement of February 2 about unit prices was introduced at the first trial, and was particularly referred to in our opinion reviewing it (240 U. S. 273, 274, 36 Sup. Ct. 300, 60 L. Ed. 636); and the requisition of March 9, then as now relied upon by plaintiff, was excluded from consideration *348 Court of Appeals to the contrary (241 Fed. 555, 154 C. C. A. 321) is not borne out by the record. The proposition criticized is not con tained in any of the instructions requested by plaintiff; and, even had it been requested, there is no exception touching it, unless it be the following: "I will ask on behalf of the defendant an ex* to the action of his honor * ** in giving all instructions requested by by us only because such details as were then "If you find he [meaning plaintiff] was justified in terminating the contract as he did on May 22 upon the principles above given you, you can consider the reasonable expenditures incurred by the plaintiff, the unavoidable losses incident to stoppage, the amount of work actually 'performed, the amount plaintiff was actually entitled to by reason of such work at the contract price, and the profits which plaintiff could have made if allowed to complete the work under the contract. So the different items that you may, if you come to the question, take into account, are the outlays less the material on hand, the amount of work actually performed, and the profits, if you find there were any which were not speculative. The measure of profits is the contract price less what is shown to you as the expense of carrying out the contract, if that is shown to you to your satisfaction." The appellate court held this instruction to be misleading because it embodied a duplication of elements. Respecting this a difficult question would be presented if defendant were *in a position to raise it. When the case was here before we assumed (240 U. S. 282, 283, 36 Sup. Ct. 300, 60 L. Ed. 636) that an instruction similarly phrased ought to have been granted at plaintiff's request had it been confined in its application to a recovery based upon a finding that the contract was rightfully terminated by the notice of May 22, 1912; but this was an assumption arguendo, and not a part of the matter decided. At the second trial this part of the charge was given by the court of its own motion, not at plaintiff's request; nor was it excepted to by defendant. The statement of the Circuit This is altogether too general to be regarded as directing the mind of the trial court to any single and precise point of alleged error so as to call for a reconsideration of the ruling, and hence could not furnish a basis for reversing the judgment. That an exception must be specific need not be emphasized. McDermott v. Severe, 202 U. S. 600, 610, 26 Sup. Ct. 709, 50 L. Ed. 1162; United States v. U. S. Fidelity Co., 236 U. S. 512, 529, 35 Sup. Ct. 298, 59 L. Ed. 696. There was another exception, couched in these terms: "To that part of the charge to the effect that if the plaintiff had the right to terminate the contract under the authority of the Behan Case, the measure of damages would be not only the expenses incurred by the plaintiff, but also reasonable profits." This, however, refers to another passage in which the trial court quoted from the headnote in 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168. This clause contained no reference to the amount of work performed or what plaintiff was entitled to by reason of this work at the contract *price; it mentioned only (a) plaintiff's outlay, and (b) the lost profits, embodied no duplication of elements, and was not erroneous. Having found that none of the grounds relied upon by the Circuit Court of Appeals for reversal of the judgment of the trial court is tenable, it remains to consider what judgment ought to have been rendered upon the record and bill of exceptions, in view of the assignments of error other than those we have thus far considered. United States v. U. S. Fidelity Co., 236 U. S. 512, 528, 35 Sup. Ct. 298, 59 L. Ed. 696. There were 101 assignments in all, and these have been examined with the aid of respondent's brief, which extends to 250 pages, in addition to the oral argument; but we have found no ground for reversing the judgment of the trial court. Judgment of the Circuit Court of Appeals reversed, and that of the District Court affirmed. *349 #362 *361 circus on their lines; but he brought, in a state court of Nebraska, an action against the railway for damages, alleging that he had been injured by its negligence. The railway defended on the ground that its contract with Barnum & Bailey, and thus with the plaintiff, operated to release it from all liability; that, since the contract related to a movement in interstate commerce, its validity was to be determined by the federal law; and that by the federal law the contracts were valid, although undertaking to release the railway from liability, since it was not acting as common carrier. Santa Fé, Prescott & Phoenix 228 U. S. 177, 33 Sup. Ct. 474, 57 L. Ed. 787. Railway Co. v. Grant Bros. Construction Co., The trial court held that the liability was to be determined by the law of Nebraska, and entered judgment for plaintiff, which was affirmed by the Supreme Court of the state. Maucher v. Chicago, R. I. & P. R. Co., 100 Neb. 237, 159 N. W. 422. The case came here on writ of error under section 237 of the Ju In Error to the Supreme Court of the State dicial Code (Act March 3, 1911, c. 231, 36 of Nebraska. Stat. 1156 [Comp. St. § 1214]). enactment of the Carmack Amendment (Act [1, 2] The railway admits that prior to the June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 584, 595 [Comp. St. §§ 8604a, 8604aa]) Congress had not dealt with the right of carriers to limit by contract their liability for injuries occurring in interstate transportation, Mr. William D. McHugh, of Omaha, Neb., and that consequently the states were free to for plaintiff in error. Messrs. Philip E. Horan, T. J. Mahoney, and J. A. C. Kennedy, all of Omaha, Neb., for defendant in error. establish their own laws and policies and apply them to such contracts. Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268. But it contends that this power of the states was superseded by the *Mr. Justice BRANDEIS delivered the opin-Carmack Amendment, since that amendment, ion of the Court. Barnum & Bailey, who owned rolling stock adapted to carrying their circus equipment and personnel, made, in 1913, a special contract with the Chicago, Rock Island & Pacific Railway Company concerning transportation on its lines. The railway agreed, for a sum fixed, to give the right to use its tracks and locomotives, fully manned and supplied, to haul the circus trains. Barnum & Bailey agreed, among other things, that the railway was not acting therein as a common carrier; that it should not be liable for any injury, though arising from negligence, either to their own person or property, or to that of any other of their employés; and that they would indemnify the railway against any such injury. While the circus train was being moved in Nebraska, from Lincoln, to Atlantic, Iowa, it was crashed into by one of the railway's regular passenger trains, and Maucher, an employé of the circus, was injured. He had, by his contract of employment, agreed to release all railroad companies from any claim for injuries suffered while traveling with the dealt with the power of carriers to contract For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes His *363 +355 (248 U. S. 354) TURNER v. UNITED STATES et al. In 1889 the Creek Nation enacted a statute which conferred upon each citizen of the (Argued and Submitted November 13 and 14, Nation, head of a family engaged in grazing 1918. Decided Jan. 7, 1919.) No. 33. livestock, the right to inclose for that purpose one square mile of the public domain without paying compensation. Inclosure of 1. INDIANS 25—LIABILITY OF CREEK NA- a greater area was prohibited; but provision TION-INJURY FROM MOB. was made for establishing, under certain In the absence of statute, the Creek Na- conditions, more extensive pastures near the tion, recognized by the United States as a dis- frontiers, to protect against influx of stock tinct political community, is, like other gov- from adjoining nations. The conditions preernments, free from liability for injury from scribed were these: If the district judge mob violence or failure to keep the peace; and this though an officer, acting in open and known should receive notice from citizens of a deviolation of law, and not colore officii, partici-sire to establish such a pasture, he was repated, and though the person injured in his quired to call a meeting of citizens to conproperty rights was a grantee of such govern- sider and act upon the subject; and if it apment. peared that a majority of the persons of vot 2. INDIANS 25-LIABILITY OF CREEK NA-ing age in the neighborhood thus to be proTION-CREATION BY STATUTE. Act May 29, 1908, § 26, authorizing the Court of Claims to consider, adjudicate, and render judgment as law and equity may require in the matter of a certain claim against the Creek Nation, creates no substantive right against, and imposes no liability on, such government. 3. UNITED STATES 125-SUIT AGAINST— CLAIM AGAINST INDIANS. No permission to sue the United States being given, it is improperly joined as defendant, though in the capacity of trustee, in a petition to recover from the Creek Nation. tected favored its establishment, the district judge was directed to let such pasture for three years (subject to renewál) to citizens who would by contract bind themselves to build a substantial fence around the pasture, and to pay at least five cents per acre per annum for the grazing privilege. In 1890 Turner and a partner formed, under the name of Pussy, Tiger & Co., an organization consisting of themselves and 100 Creeks, with a view to securing such a pasture in the Deep Fork district. They caused an election to be held and a contract to be entered into by the district judge with Pussy, Tiger & Co., which covered about 256,000 acres. The fence required to inclose it was about 80 miles in length. Before its construction was begun, dissatisfaction had already developed in the neighborhood; and from the time the fence was commenced, there were rumors of threats by Indians to destroy it if built. The work was, however, undertaken; the threats continued; and Turner and one of his assignees secured from the United States Court in the Indian Territory, First Judicial Division, an injunction restraining the Creek district judge for the Deep Fork district and L. C. Perryman, the Principal Chief of the Nation, from interfering with or damaging the fence. After Mr. Justice BRANDEIS delivered the it had been nearly completed, three bands opinion of the Court. The Creek or Muskogee Nation or Tribe of Indians had, in 1890, a population of 15,000. Subject to the control of *Congress, they then exercised within a defined territory the powers of a sovereign people, having a tribal organization, their own system of laws, and a government with the usual branches, executive, legislative, and judicial. The territory was divided into six districts; and each district was provided with a judge.1 1 Treaty of June 14, 1866, art. X (14 Stat. 785, 788); Report of the Commissioner of Indian Affairs for 1888, p. 113; for 1889, p. 202; for 1890, pp. 89, 90; for 1891, vol. 1, pp. 240, 241. of Creek Indians destroyed the fence, cutting the wire and posts and scattering the staples. It does not appear that either the Creek judge or the Chief or any other official of the Creek government had any part in the destruction of the fence, except one Moore, the treasurer, whose only official duties seem to have been "to receive and receipt for all national funds and to disburse the same, as should be provided for by law." More than $10,000 net expended in constructing the fence, and $2,500 paid by Turner to the 100 Creek Indians associated with him for the release of their grazing rights were lost, and large profits which it was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *356 *357 expected would be made through assignment ( violence or failure to keep the peace. Comof pasturage rights to cattle raisers were pare Louisiana v. Mayor of New Orleans, prevented. Claims for compensation were 109 U. S. 285, 287, 291, 3 Sup. Ct. 211, 27 L. repeatedly presented by Turner to the Creek Ed. 936; South v. Maryland, 18 How. 396, 15 Nation. Once its National Council voted to L. Ed. 433; Murdock Grate Co. v. Commonmake compensation; but Chief Perryman ve- wealth, 152 Mass. 28, 31, 24 N. E. 854, 8 L. toed the action and his veto was sustained. R. A. 399. Such liability is frequently imLater the Creek Supreme Court declared the posed by statute upon cities and counties (see fence a legal structure; but still the Nation City of Chicago v. Pennsylvania Co., 119 failed to make any compensation. On March Fed. 497, 57 C. C. A. 509); but neither Con4, 1906, the tribal organization was dissolved gress nor the Creek Nation had dealt with pursuant to Act March 1, 1901, c. 676, § 46 the subject by any legislation prior to 1908. (31 Stat. 861, 872). In 1908 Congress pro- The fundamental obstacle to recovery is not vided, by section 26 of the Act of May 29, the immunity of a sovereign to suit, but the 1908, c. 216 (35 Stat. 444, 457), as follows: lack of a substantive right to recover the "That the Court of Claims is hereby authoriz- damages resulting from failure of a governed to *consider and adjudicate and render judgment or its officers to keep the peace. And ment as law and equity may require in the matter of the claim of Clarence W. Turner, of Muskogee, Oklahoma, against the Creek Nation, for the destruction of personal property and the value of the loss of the pasture of the said Turner, or his assigns, by the action of any of the responsible Creek authorities, or with their cognizance and acquiescence, either party to said cause in the Court of Claims to have the right of appeal to the Supreme Court of the United States." In August, 1908, Turner, having acquired all the rights of his associates, filed a petition in the Court of Claims against the Creek Nation and the United States as trustee of Creek funds,2 to recover the amount lost, which he alleged to be the sum of $105,698.03. The Court of Claims dismissed the petition (51 Ct. Cl. 125), and the case comes here by appeal. The claimant contends that, by the general law, the Creek Nation is liable in damages for the action of the mob which resulted in the destruction of his property and prevented him from securing the benefits of the contract entered into between him as grantee and the Creek Nation, and that if the substantive right did not already exist, it was created by the act which conferred jurisdiction upon the Court of Claims to hear and adjudicate the controversy. [1] First. No such liability existed by the general law. The Creek Nation was recognized by the United States as a distinct political community, with which it made treaties and which within its own territory administered its internal affairs. Like other governments, municipal as well as state, the Creek Nation was free from liability for injuries to persons or property due to mob 2 On November 18, 1915, the sum of $1,325,167.16 was held by the United States in trust for the Creek Nation of Indians. In addition thereto approximately $1,110,000.00 of the tribal funds of the Nation were on deposit in the Oklahoma state and national banks, on April 10, 1916, under the provisions of Act March 3, 1911, c. 210, § 17, 36 Stat. 1058, 1069 (Comp. St. § 725). the participation in the injuries of an officer acting, not colore officii, but in open and known violation of the law, cannot alter the case. The claimant's contention that the defendant owed to the claimant, as its own grantee, a greater duty than it owed to other persons in the territory, to protect him against mob violence, finds no support in reason or authority. [2] Second. The special act of May 29, 1908, did not impose any liability upon the Creek Nation. The tribal government had been dissolved. Without authorization from Congress, the Nation could not then have been sued in any court; at least without its consent. The Court of Claims is "authorized to consider and adjudicate and render judgment as law and equity may require." The words of the act which follow merely identify the claims which the court is authorized to consider. Authority to sue the Creek Nation is implied; but there is nothing in the act which even tends to indicate a purpose to create a new substantive right. Compare United States v. Mille Lac Chippewas, 229 U. S. 498, 500, 33 Sup. Ct. 811, 57 L. Ed. 1299; Green v. Menominee Tribe, 233 U. S. 558, 568, 34 Sup. Ct. 706, 58 L. Ed. 1093; Thompson v. United States, 246 U. S. 547, 38 Sup. Ct. 349, 62 L. Ed. 876. The act simply provides a forum for the adjudication of such rights as Turner may have against the Creek Nation. [3] *Third. The United States objected also to the jurisdiction of the court over it. Neither the special act nor any general statute authorized suit against the United States. As it cannot be sued without its consent, the United States was improperly joined as a party defendant, although in the capacity of trustee for the Creek Nation. Compare Green v. Menominee Tribe, supra. It is not necessary to consider the many other objections urged against the petition. The Court of Claims properly dismissed it; and the judgment is Affirmed. *358 628* |