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13,463,400 feet. The defendants, J. B. Bas- | comprised within Indian reservations is in sett & Co., likewise admitted that under two contracts with the Indians they had received saw logs which had yielded in the aggregate 4,136,860 feet of lumber.

the United States, subject to a right of occupancy on the part of the Indians, and that the unauthorized cutting of timber upon Indian reservations is not only unlawful (United States v. Cook, 19 Wall. 591, 22 L. ed. 210; Northern P. R. Co. v. Lewis, 162 U. S. 366, 40 L. ed. 1002, 16 Sup. Ct. Rep. 831), but is made a criminal offense by the act of June 4, 1888. 25 Stat. at L. 166, chap. 340. But by an act of Congress passed February 16, 1889 (25 Stat. at L. 673, chap. 172), it is provided: "That the President of the United States may from year to year, in his discretion, under such regulations as he may prescribe, authorize the Indians residing on reservations or atlotments, the fee to which remains in the United States, to fell, cut, remove, sell, or otherwise dispose of the dead timber standing or fallen, on such reservation or allotment, for the sole benefit of such Indian or Indians. But whenever there is reasonable cause to believe that such timber has been killed, burned, girdled, or otherwise injured for the purpose of securing its sale under this act, then in that case such authority shall not be granted."

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Indian Affairs; and that 10 per cent of the gross proceeds derived from such sale of the logs should go to the stumpage or poor fund of the tribe, from which the old, sick, and otherwise helpless might be supported.

The timber in this case was cut under five different contracts made between individual Indians and the defendants, all of which were limited to dead and down timber, to be cut during the season of 1891 and 1892. The first provided for 250,000 feet; the second for 500,000 feet; the third for 500,000 feet; the fourth for 1,000,000 feet, and the fifth for 500,000 feet. The whole amounted to 2,750,000 feet. These contracts were approved by the Commissioner of Indian Affairs, and, although in some of their provisions they differed from the general regulations above stated, which provided for a public sale of logs at auction or under sealed proposals, they must be regarded as superseding those regulations in that particular, and as constituting new regulations approved by the President and Commissioner of Indian Affairs.

cuit court. The bill of exceptions shown that when the plaintiff rested, defendants moved the court that the plaintiff "elect as to the time and place of the conversation (conversion) upon which it relies," and that plaintiff thereupon elected to take the value of the logs in the spring of 1892 as they were at the time of the seizure. Upon the conclusion of the entire testimony plaintiff moved the court to strike out all the evi dence offered by the defendants with reference to their good faith in the transactions, which the court denied, and plaintiff excepted; and thereupon the court instructed the jury to return its verdict in favor of the plaintiff, to which an exception was also taken. No such objection upon the ground of misjoinder was taken in the assignment of errors filed in the circuit court of appeals to review that judgment, or in the original assignment of errors filed in this court and incorporated in the record. It would appear that the objection was made on behalf of the defendants in the first trial of the case, inasmuch as it is mentioned in the first opinThe object of the statute, as interpreted ion of the circuit court of appeals. 24 C. by these regulations, was evidently to per- C. A. 101, 49 U. S. App. 24, 78 Fed. 320. It mit deserving Indians, who had no other suf- will be remembered that upon this first trial ficient means of support, to cut for a single the case was submitted upon the pleadings season a limited quantity of dead and down alone, defendants taking an objection in the timber under the superintendence of a prop-nature of a demurrer that, upon the facts erly qualified white man, and to use the pro-admitted by the pleadings, the government ceeds for their support in exact proportion could not recover, but was relegated to an to the scale of logs banked by each, provided action upon the bonds given when the logs that 10 per cent of the gross proceeds should were surrendered to the defendants. The go to the stumpage or poor fund of the tribe, circuit court of appeals held that the comfrom which the old, sick, and otherwise help-plaint did not disclose a misjoinder of causes less might be supported. The rights of the of action, and also that the judgment rengovernment to the unimpaired value of the dered by the circuit court was in such form land and to the standing timber were care-that, if sustained, it would bar a subsequent fully guarded by the proviso that no green or growing timber should be cut, and no live trees damaged, so as to cause them to die, that they might be marketed under the provisions of the act. Nothing can be plainer than that there was no intention on the part of Congress or the President to authorize promiscuous logging operations, or the felling of live standing timber, or that a few Indians should be permitted to monopolize the proceeds, but that they should be divided among the individuals of the tribe in proportion to the scale of the logs banked by each.

1. The first assignment of error takes exception to the action of the circuit court in instructing the jury to return a verdict for the United States, because it required the logging company to become responsible for, any pay the obligations of, Bassett & Co., and required that firm to pay the obligations of the logging company, and also required the firm of C. A. Smith & Co. to pay the obligations both of the logging company and Bassett & Co., when there was no evidence in the case to justify the court in holding any of the parties liable for the obligations of the others; or if such evidence existed at all, it was a question of fact for the jury.

The difficulty with this assignment is that no such point appears to have been taken upon the trial of the case in the cir

suit against either of the defendants for a wrongful conversion of the property. The point was therefore held not to be well taken, and from that time seems to have been waived or abandoned, as it does not appear to have been raised upon the second or third trials.

This clearly precludes the defendants from raising the question at this stage of the case. It is well settled in this court that an objection that the evidence does not support a joint action against all of the defendants, in other words, a variance between the pleadings and proofs, is one which should be taken at the trial and cannot be raised for the first time in the appellate court. In Roberts v. Graham, 6 Wall. 578, 18 L. ed. 791, it was said that an objection of variance between the allegations and proofs must be taken when the evidence is offered, and will not even be available upɔn motion for new trial. See also O'Reilly v. Campbell, 116 U. S. 418, 29 L. ed. 669, 6 Sup. Ct. Rep. 421; Patrick v. Graham, 132 U. S. 627, 33 L. ed. 460, 10 Sup. Ct. Rep. 194; Boston & A. R. Co. v. O'Reilly, 158 Ù. S. 334, 39 L. ed. 1006, 15 Sup. Ct. Rep. 830.

But, in addition to this, the record is by no means barren of evidence of a joint responsibility. While the contracts with the Indians were separately made by each de fendant, and their accounts of logs cut and

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money paid were kept distinct from each other, and each averred that it had nothing to do with the contracts of the other, two of the defendants testified that the logs cut under the five contracts were equally divided between C. A. Smith & Co. and J. B. Bassett & Co., and not according to the amounts named in the contracts; that the logging company was practically controlled by C. A. Smith & Co., and that the logging operations were conducted under the supervision of three men who were acting as agents of these firms. We do not undertake to say that there was not evidence upon this point which, if the attention of the court had been called to it, should not have been submitted to the jury; but as the question was not made in the circuit court or in the court of appeals it is too late to raise it upon a writ of error from this court.

pose would be required; and that the government was not liable for more than 40 cords of wood which was accepted by the officers. So in Watts v. Camors, 115 U. S. 353, 29 L. ed. 406, 6 Sup. Ct. Rep. 91, it was held that where a ship was described in a charter party as of the burden of 1,100 tons, "or thereabouts," registered measurement, the charterer was bound to accept her, although her registered measurement, known to both parties, was 1,203 tons.

un

But, upon the other hand, if the agreement be to manufacture, furnish, or deliver certain property not then in existence, or to be taken from a larger quantity, the addition of the words "more or less" will be given a narrow construction, and held to apply only to such accidental or immaterial variations in quantity as would naturally occur in connection with such a transaction. Norrington v. Wright, 115 U. S. 188, 29 L

2. By the second assignment it is insisted that the court should either have instructed. 366, 6 Sup. Ct. Rep. 12. ed the jury, or left to them to determine, that under the contracts between the logging company and Bassett & Co. respectively on the one hand, and the Indians on the other, as those contracts had been construed and acted upon by all parties in interest, including the United States, these companies respectively had a good title to all the dead and down timber delivered to them by the Indians under the contracts, without regard to the specific quantity of timber mentioned therein.

The contracts in this case unquestionably belong to the latter class. They were contracts to cut and deliver a certain quantity of dead and down timber, and if construed, as is claimed, to authorize the cutting of six times that amount, the quantity might as well have been omitted altogether. The argument of the defendants in that connection is virtually an insistence that the specification of the quantity to be cut should be discarded, and as the payment was stipulated at a certain price per thousand feet, the con tract should be interpreted as authorizing the cutting of ar unlimited quantity, so long as the price paid was that stipulated in the contract.

In two of the contracts the designation of the quantity of timber to be cut is preceded by the word "about," and in the other three is followed by the words "more or less." It is contended that by the use of Defendants' main reliance, however, is upthese words the contracts were susceptible on the construction of these contracts by the of a wide latitude of construction, and if parties themselves, including the United the parties themselves disregarded the limi-States, and in support of their position they tations, the court, in interpreting those con- invoke the general rule that where tracts, will adopt the construction given both parties to a contract have by them by the parties interested.

their subsequent conduct given it & There is no doubt whatever of the general construction different from what the proposition that where the words "about" law might have given it, the courts will or "more or less" are used as estimates of an adopt that construction; and that the statotherwise designated quantity, and the ob- utes under which the cutting was done, the ject of the parties is the sale or purchase of correspondence between the Secretary of the a particular lot, as a pile of wood or coal, Interior and the President upon the subject, or the cargo of a particular ship, or a cer- the regulations which the latter adopted for tain parcel of land, the words "more or carrying the act into effect, and the conduct less," used in connection with the estimated of the parties to the contracts, tend to show quantity, are susceptible of a broad con- that they were intended to authorize the restruction, and the contract would be inter- moval of all the dead and down timber on preted as applying to the particular lot or the public land described in them. Unparcel, provided it be sufficienly otherwise doubtedly there is some support for the identified. This doctrine is well illustrated proposition in the disregard by the parties in the case of Brawley v. United States, 96 to the contract of the limitations of quanU. S. 168, 24 L. ed. 622, where the contract tity to be cut; but upon the statute and regwas to deliver to a military post 880 cords ulations we put, as before stated, an enof wood, "more or less, as shall be deter- tirely different interpretation. The argu mined to be necessary by the post command- ment overlooks the fact that the Indians er, for the regular supply, in accordance with had no right to the timber upon this land army regulations of the troops and em- other than to provide themselves with the ployees of the garrison of said post." It necessary wood for their individual use, or was held that the latter were the determina- to improve their land (United States v. tive words of the contract, and the quantity, Cook, 19 Wall. 591, 22 L. ed. 210), except so designated at 880 cords, was to be regarded far as Congress chose to extend such right; merely as an estimate of what the officer that they had no right even to contract for making the contract at the time might sup- 'the cutting of dead and down timber, unless

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3. The third assignment of error is diwhich were assessed at the value of the logs as they were banked upon the streams and lakes in the neighborhood of where they were cut. It is insisted that the proper measure was the value to the government of the timber before the Indians or the contractors had, by their labors, added to that value.

such contracts were approved by the Com-it. In short, the object of these regulamissioner of Indian Affairs; that the Indi- tions was to prevent exactly what was done ans in fact were not treated as sui juris, but in this case, that is, the appropriation to a every movement made by them, either in the few Indians of the benefits of the act to the execution or the performance of the con- exclusion of the many. It will be observed tract, was subject to government supervision that while the defendants were interested in for the express purpose of securing the lat-all these contracts, care was taken that one ter against the abuse of the right given by contract should not be made for the delivthe statute. It is true that, as a matter of ering of the gross amount of logs, but that fact, the work was done under these con- five different contracts should be entered tracts under the superintendence of a gov. into with different Indians, undoubtedly for ernment agent, who personally directed the very purpose of preventing a monopoly what timber should be cut, and when the by a single person, the largest of these contimber had been cut and a final settlement tracts being only for a million feet. was made with the Indians, the amounts found to be due them were paid to the Indi-rected to the proper measure of damages, an agent, who, with the contracts before him, must have known when he received his payments the quantity of timber which had been cut under the different contracts. *It is unnecessary to inquire what excuses may be made by these officers for thus indirectly approving the construction put upon the contracts by the parties interested, since they could not bind the government in this To determine the proper measure of damparticular. With the contracts before them ages, it is necessary to consider the exact rethey had but one duty, and that was to see lation of the defendants to this timber. that they were honestly and faithfully car- They were certainly not innocent purchasried out according to their spirit and letter. ers for value of the logs that were cut. All No authority had been given them to ex- the logs were cut under contracts with intend the contracts either as to the quantity dividual Indians, by which the latter had or quality of timber to be cut. In fact, agreed to cut, haul, and deliver to the dethey were placed in charge of the operations fendant, upon the Mississippi river, or for the express purpose of seeing that there waters tributary thereto, an aggregate of should be no violation of the contracts in 2,750,000 feet of dead and down timber, dethese particulars. They, as well as the fendants agreeing to pay to the Indian Departies thereto, were equally bound by its partment 10 per cent of the purchase price provisions. No discretion had been given as stumpage for such timber, which should them to waive or alter the contracts in any be deducted from the price of $4 per thous particular. No conduct of theirs can estop and agreed to be paid. As a matter of fact, the government from asserting its rights to there were delivered on these contracts over recover for timber cut beyond the quantity 17,000,000 instead of 2,750,000 feet conand quality specified in the contract. Lee tracted for, a large proportion of which v. Munroe, 7 Čranch, 366, 3 L. ed. 373; The seems to have been cut from green and growFloyd Acceptances, 7 Wall. 666; sub nom.ing timber, though the quality of the timber Pierce v. United States, 19 L. ed. 169; White- is not in issue here. Defendants could not side v. United States, 93 U. S. 247, 23 L. ed. 882. We are therefore of opinion that the defendants cannot take refuge under the consent or acquiescence of the government agent in the disregard of these contracts.

have failed to know that they were paying for a very much larger amount than they had agreed to buy, or than the Indians had any power to sell. They knew that their contracts had been approved by the Commissioner of Indian Affairs upon the basis of a certain quantity of dead and down timber, and that if the agent of the Indian Dêpartment had acquiesced in the amount and quality of timber actually cut, he had exceeded his authority, and his acts were not binding upon the government. *Granting that the question that what constituted "dead and down" timber might be the subject of a bona fide dispute, there was no question but that the amount of timber received grossly exceeded the amount contracted for, and that an agreement to cut 2,750,000 feet could not be glossed over by the words "about" or "more or less" in any such way as to cover 17,000,000 feet.

To give to them the construction claimed by defendants is not only inconsistent with their language, but with the regulations of the President, the design of which was to permit every Indian on the reservation to engage in the work of cutting dead and down timber, and that no one should obtain more than his fair share of such privilege. The timber in question, if allowed to lie upon the land, would simply rot and go to waste, and its removal and sale were no detriment to the land or the government; and this right, if judiciously exercised, would give support to a good many Indians who had no other means of earning a living. The regulations, however, properly limited the right to Indians "not well employed," and pro- The case of E. E. Bolles Woodenware Co. vided that no favoritism should be shown v. United States, 106 U. S. 432, 27 L. ed. by the agent in the management of the busi-230, 1 Sup. Ct. Rep. 398, is decisive ness, and that no Indian should be permitted of the law in this connection. That to monopolize the business for his own prof. was also an action of trover brought by the

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and down timber upon the lands described
in the contracts, is to impute to them an
ignorance of the English language. This
might be ascribed to the Indians, but not to
the other parties. It is unnecessary to say
that the defendants do not stand in a posi
tion of innocent purchasers in good faith.
It may admit of some question whether
their advances of money and supplies to the
Indians to carry on the logging operations
was not a violation of the regulation that
"each Indian shall provide his own logging
outfit and supplies," but however this may
be, it gives no color to the assertion that
the defendants acted in good faith, since
they could hardly have failed to know that
their advances must have been greatly in ex-
cess of what was needed for preparing for
market less than 3,000,000 feet of logs.

United States for the value of 242 cords of ash timber cut from the Oneida reservation in the state of Wisconsin. The timber was knowingly and wrongfully taken from the reservation by Indians, and carried to a distant town, where it was sold to the woodenware company, which was not chargeable with any intentional wrong or misconduct or bad faith in the purchase. The timber on the ground, after it was felled, was worth 25 cents per cord, and at the town where the defendant bought it, $3.50 per cord. The question was whether the liability of the defendant should be measured by the value of the timber on the ground where it was cut, or at the town where it was delivered. It was held that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern; We regard the rule laid down in the or, if the conversion sued for was after Woodenware Case, that an intentional tresvalue had been added to it by the work of passer, or a purchaser from him, shall have the defendant, he should be credited with no credit for the labor he may have exthis addition. Upon the other hand, if the pended upon the property at the time of its trespass be wilfully committed, the tres- conversion, as an eminently proper and passer can obtain no credit for the labor ex-wholesome one. It is, and has for many pended upon it, and is liable for its full years been, notorious that under the various value when seized; and if the defendant pur-guises of Indian contracts, purchases of timchase it in its then condition, with no notice that it belonged to the United States, and with no intention to do wrong, he must respond by the same rule of damages as his vendor would, if he had been sued. "This right" (of the recovery of the property), said the court, "at the moment preceding the purchase by defendant at Depere, was perfect, with no right in anyone to set up a claim for work and labor bestowed on it by the wrongdoer. It is also plain that by purchase from the wrongdoer defendant did not acquire any better title to the property than his vendor had. It is not a case where an innocent purchaser can defend himself under that plea. If it were, he would be liable to no damages at all, and no recovery could be had. On the contrary, it is a case to which the doctrine of caveat emptor applies, and hence the right of recovery in plaintiff."

The cases involving this distinction and in line with the Woodenware Case are abundant, both in the Federal and state courts, and are too numerous even for citation. We do not see that the defendants are in any better position by the fact that the contracts were approved by the Commissioner of Indian Affairs, since it was not what was done in pursuance of these contracts, but what was done in disregard of them, which lies at the basis of plaintiff's action. Had the contracts been adhered to, clearly there could have been no recovery. We are not called upon to explain the conduct of the government agent who superintended the cutting of this timber. It is sufficient to say, as already stated, that his acts in excess of his authority, which must have been well known to the defendants, afford them no protection. To say that all parties, including the Indians, the government agent, and the defendants, may have honestly supposed that their right extended to all dead

ber entries, or cutting timber for railway, mining, or agricultural purposes, the timber lands of the United States are being denuded of all their substantial value by logging concerns gradually gathering to themselves all the valuable timber of the country, which Congress intended to reserve for the benefit of homestead entrymen, or the purchasers of land in small parcels. If trespassers under these circumstances were permitted to escape by the payment of the mere stumpage value of the standing timber, there would be a strong inducement upon the part of these operators to avail themselves of every opportunity of seizing this timber, since they would incur no greater liability than the payment of a nominal sum. It is only by denying them a credit for their labor expended upon it that the government can obtain an adequate reparation for this constantly growing evil, and trespassers be made to suffer some punishment for their depredations.

4. The fourth assignment is based upon the proposition that the contractors should have been allowed credit for the amount paid to the United States for stumpage on account of the 14,850,260 feet included in the verdict. The stumpage representing this quantity of timber would be $6,400.

This payment was not made to the United States in reimbursement of their claim for timber, but under regulations of the President, and under their contracts with the Indians that they would pay 10 per cent of the stipulated compensation of $4 per thous and feet to the Indian Department as stumpage, which should be deducted from the price of $4 per thousand feet, and under the condition that such stumpage should go to the poor fund of the tribe, from which its helpless members might be supported. This payment was not made to the government as vendor, but to be held by the Indian De