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KIRBY V. UNITED STATES, 260 U. S. 423 (1922)

U.S. Supreme Court

Kirby v. United States, 260 U.S. 423 (1922)

Kirby v. United States

No. 126

Argued November 27, 1922

Decided December 11, 1922

260 U.S. 423


A lease of Indian land for cattle grazing, for two years at a minimum rental of $31,950 per year, provided that the number of cattle to be grazed should "be limited to an average of 9,000 head, the maximum number at any one time not to exceed 11,500 head," and that "any excess over and above such maximum number shall be paid for at the rate of $4.50 per head for each and every head of such excess number," in addition to the rental named.

Held, reading these with other provisions of the lease and with the written proposal therefor, and considering the subject matter,

(1) That the average of 9,000 head was for each year separately to be paid for by the minimum rental, and that the additional charge of $4.50 per head applied to all in excess of that average, and not merely to any excess over 11,500 head grazed at any one time. P. 260 U. S. 425.

(2) The $4.50 charge was neither a penalty nor liquidated damages. P. 260 U. S. 427.

(3) The act of one of the two lessees who was in charge of the leased area in admitting additional cattle to graze was the act of both. P. 260 U. S. 427.

273 F. 391 affirmed.

Error to a judgment of the circuit court of appeals affirming a judgment recovered by the United States in the district court in an action for rent against two lessees and their surety.

Page 260 U. S. 424

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