When a sum of money has been voluntarily paid by the United
States to a mail contractor, by mistake of fact, or under
circumstances to bring the payment within the provisions of
Rev.Stat. § 4057, the amount may be applied by the government
toward the payment of any balance that may be found due him, in the
settlement of his accounts, for other services under his
contract.
A contract to carry the mails from one station to another
station, by way of two intervening specified stations, a stated
number of miles and back, is not performed by carrying them over
that route one way, returning from the terminal station to the
place of beginning by a shorter route, avoiding the intermediate
stations.
When a contractor for carrying the mails seeks to recover the
full contract price for a service which, as actually performed, was
less than that contracted for, the burden of proof is on him to
show knowledge or information by the Department of his conduct in
the premises.
Knowledge by the Post-Office Department of the failure of a mail
contractor to perform the full service required by his contract is
not to be presumed from reports of the local postmaster to the
Department that the service had been performed.
Carr filed his petition against the United States in the Court
of Claims on the 17th of February, 1885, averring that the
Postmaster General entered into a contract in writing with him in
April, 1878, for carrying the mails of the United States from
Salinas City, in the State of California, to Gabilan in that state
and back from Gabilan to Salinas City for the annual sum of $796, a
copy of which contract he attached to his petition; that at the
time of the letting of the contract and for upwards of four years
prior thereto, the mails were carried upon the route aforesaid,
outward from Salinas to Santa Rita,
Page 132 U. S. 645
a distance of three miles, and from Santa Rita to Natividad, a
distance of four miles, and from the last-named place to Gabilan, a
distance of eight miles, and on the return trip direct from Gabilan
to Salinas, a distance of about ten miles, without passing through
Natividad and Santa Rita; that he believed that the mode of
transportation last aforesaid was established under the authority
of the Postmaster General for said route, and proposed to carry the
mails upon said route for the compensation aforesaid upon the
understanding that the mails were, during the term of the contract,
intended by said proposal to be carried in the manner before
stated; that he commenced service under the contract July 1, 1878,
and for four years, including the 30th day of June, 1882, carried
the mails six times a week from Salinas, by way of Santa Rita and
Natividad, to Gabilan, and back direct from Gabilan to Salinas, by
a direct line, not passing through Natividad and Santa Rita; that
the compensation was paid up to January 1, 1882, but not from the
1st of January to the 1st of July, 1882, and that the Postmaster
General has refused to pay petitioner the sum of $398, the amount
of compensation due for the period last mentioned, upon the ground
that petitioner had not performed his contract, inasmuch as he had
not carried the mails from Gabilan to Salinas by way of Natividad
and Santa Rita. Petitioner further alleged that at the letting he
presented proposals to the Postmaster General for carrying the
mails upon four other routes for the period of four years, namely,
from July 1, 1878, to June 30, 1882, and obtained contracts
therefor at certain compensation in the proposals named; that, from
the compensation due on the last-named contracts, $348.25 was
withheld on account of the first-named contract, and there was also
deducted from the four last contracts the sum of $35.92 for certain
alleged delays in the transportation of the mail. Petitioner
therefore prayed judgment for the sum of $782.17. The findings of
fact and conclusions of law are as follows:
"
I
"
"In April, 1878, the Postmaster General and the claimant entered
into a contract to carry the mails on route No. 46,118
Page 132 U. S. 646
in the State of California, from Salinas, by Santa Rita and
Natividad, to Gabilan and back, six times a week, for the annual
sum of $796. The material portions of said contract are set forth
in finding V."
"
II
"
"The mails were carried on said route under said contract for
four years, commencing July 1, 1878, and ending June 30, 1882, as
follows:"
"The mails were carried by the claimant from Salinas, by way of
Santa Rita and Natividad, to Gabilan, and back to Salinas by a
direct route from Gabilan to Salinas. The distance from Salinas by
Santa Rita and Natividad to Gabilan, is twelve miles. The distance
from Gabilan to Salinas by a direct route is ten miles."
"That the said route was operated by the claimant since the year
1870, the mails being always carried in the same manner in which
the same were carried by the claimant -- namely, from Salinas, by
way of Santa Rita and Natividad, to Gabilan, and from Gabilan to
Salinas direct, and, until the date of the certificate of
inspection of the 12th of May, 1882, have always been certified as
duly carried, and paid for accordingly by the Post Office
Department. The provisions of the contract under which said service
was performed were in all respects similar to the provisions of the
contract sued on."
III
"For the failure of claimant to carry the mails via Santa Rita
and Natividad, as aforesaid, from July 1, 1878, to March 31, 1882,
the Postmaster General, upon May 13, 1882, entered a deduction from
his compensation of $746.25, which deduction equals one-quarter of
the total compensation fixed by the contract for whole service
under it, during the period covered by the alleged
delinquency."
"There is no proof that any subsequent failure to said date of
the claimant to carry the United States mail via Santa Rita and
Natividad has ever come to the notice of the Postmaster General or
the Post Office Department.
Page 132 U. S. 647
"
"
IV
"
"In the advertisement of November 1, 1877, inviting proposals
for carrying the mails of the United States in certain states and
territories, the Postmaster General invited bids for carrying said
mails on the following route in California, to-wit:"
"46, 118. From Salinas, by Santa Rita and Natividad, to Gabilan,
15 miles and back, six times a week."
"Leave Salinas daily, except Sunday at 1 P.M. Arrive at Gabilan
by 7 P.M."
"Leave Gabilan daily, except Sunday at 6 A.M."
"Arrive at Salinas by 12 M."
"Bond required with bid, $1,800."
"
V
"
"
No. 46,118. $796."
" This article of contract, made on the 15th of March, 1878,
between the United States of America, acting in this behalf by the
Postmaster General, and J. D. Carr, contractor, and A. B. Jackson,
of Salinas, Monterey County, California, and George Pomeroy, of
Salinas, Monterey County, California, as his sureties, witnesseth
that whereas J. D. Carr has been accepted, according to law, as
contractor for transporting the mail on route No. 46,118, from
Salinas, Cal., by Santa Rita and Natividad, to Gabilan and back,
six times a week at $796 per year, for and during the term
beginning July 1, 1878, and ending June 30, 1882, . . . for which
services, when performed, the said J. D. Carr, contractor, is to be
paid by the United States the sum of $796 a year, to-wit,
quarterly, in the months of November, February, May, and August,
through the postmasters on the route, or otherwise at the option of
the Postmaster General, said pay to be subject, however, to be
reduced or discontinued by the Postmaster General as hereinafter
stipulated, or to be suspended in case of delinquency."
" It is hereby stipulated and agreed by the said contractor
Page 132 U. S. 648
and his sureties that the Postmaster General may discontinue or
extend this contract, change the schedule and termini of the route,
and alter, increase, decrease, or extend the service, in accordance
with law, he allowing a
pro rata increase of compensation
for any additional service thereby required, or for increased
speed, if the employment of additional stock or carriers is
rendered necessary; and, in case of decrease, curtailment, or
discontinuance of service, as a full indemnity to said contractor,
one month's extra pay on the amount of service dispensed with, and
a
pro rata compensation for the service retained,
provided, however, that, in case of increased expedition
the contractor may, upon timely notice, relinquish the
contract."
" It is hereby also stipulated and agreed by the said contractor
and his sureties, as aforesaid, that they shall forfeit --"
" 1. The pay of a trip when it is not run, and, in addition, if
no sufficient excuse for the failure is furnished, an amount not
more than three times the pay of the trip."
" 2. At least one-fourth of the pay of the trip when the running
is so far behind time as to fail to make connection with a
depending mail."
" 3. For violating any of the foregoing provisions touching the
transmission of commercial intelligence more rapidly than by mail,
or giving preference to passengers of freight over the mail or any
portion thereof, or for leaving the same for their accommodation,
or carrying otherwise than in the mail matter which should go by
mail; or transporting persons engaged in so doing, with knowledge
thereof, a penalty equal to a quarter's pay."
" 4. For violating any other provision of this contract touching
the carriage of the mails or the time and manner thereof without a
satisfactory explanation of the delinquency in due time to the
Postmaster General, a penalty in his discretion. That these
forfeitures may be increased into penalties of a higher amount, in
the discretion of the Postmaster General, according to the nature
or frequency of the failure and the importance of the mail,
provided that, except as herein
Page 132 U. S. 649
otherwise specified, and except as provided by law, no penalty
shall exceed three times the pay of a trip in each case."
"
* * * *"
" [Duly signed, sealed, and delivered.]"
VI
"
CERTIFICATE OF INSPECTION"
"POST OFFICE DEPARTMENT"
"OFFICE OF THE SECOND ASSISTANT POSTMASTER GENERAL"
"DIVISION OF INSPECTION"
"
Washington, D.C. October 23, 1878"
" Sir: I hereby certify that the mails have been carried by
contractors in accordance with provisions of contract, or orders on
routes stated herein by number in the State of California, without
any failures or delinquencies so far as shown by returns received,
for the quarter ended September 30, 1878."
"
* * 46,118 * *"
"J. L. FRENCH"
"
Acting Second Assistant Postmaster General"
" TO THE AUDITOR OF THE TREASURY"
" FOR THE POST OFFICE DEPARTMENT"
" On March 22, 1882, Second Assistant Postmaster General
addressed a letter to the postmaster at Natividad, and received
information from him on April 6, 1882, that the mail was not
carried from Gabilan by way of Natividad and Santa Rita, and that
such had been the practice since the present contractor had the
contract. The postmaster at Santa Rita certified to the Postmaster
General that such had been the practice since he became postmaster.
The date of the letters as to the continuance of the mode of
carrying the mails was May 1, 1882."
"
CONCLUSION OF LAW"
" Upon the foregoing facts, the court determines, as a
conclusion of law, that the claimant is entitled to recover the sum
of $746.25."
Judgment was thereupon rendered in favor of the petitioner
Page 132 U. S. 650
for $746.25, from which the defendant appealed to this Court.
The opinion of the Court of Claims will be found in 22 Ct.Cl.
152.
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
The amount sued for was $782.17, of which the sum of $35.92, the
aggregate of some small deductions upon other contracts, was
disallowed by the Court of Claims, and that result accepted by the
claimant. It appears from the third finding that the Postmaster
General deducted from the claimant's compensation, under contract
No. 46,118, $746.25,
"which deduction equals one-quarter of the total compensation
fixed by the contract for whole service under it during the period
covered by the alleged delinquency,"
being the three years and three-quarters from July 1, 1878, to
March 31, 1882. It follows, then, that the contractor performed the
service for the months of April, May, and June, 1882, as required
by the contract, as hereafter considered. As to $398 of the
$746.25, that sum was withheld from the compensation under the
contract in question, the last two quarters not having been paid,
but the balance of $348.25 was deducted from moneys coming to the
petitioner on other contracts, and he contends that it should not
have been so deducted, because that amount had been voluntarily
paid by the United States, and therefore could not be recovered
back. But if the contractor was not entitled to $746.25 of the
compensation provided by this contract, and if payments were made
thereon up to the last two quarters by mistake for service that had
not been performed, or under such circumstances as brought them
within section 4057 of the Revised Statutes, then the payments
could be recovered back, and their deduction in part from other
money coming to
Page 132 U. S. 651
petitioner was proper in the settlement of the accounts between
the parties.
Section 4057 is as follows:
"In all cases where money has been paid out of the funds of the
Post Office Department under the pretense that service has been
performed therefor, when, in fact, such service has not been
performed, or as additional allowance for increased service
actually rendered when the additional allowance exceeds the sum
which, according to law, might rightfully have been allowed
therefor, and in all other cases where money of the Department has
been paid to any person in consequence of fraudulent
representations, or by the mistake, collusion, or misconduct of any
officer or other employee in the postal service, the Postmaster
General shall cause suit to be brought to recover such wrong or
fraudulent payment or excess, with interest thereon."
This section was applied in
United States v. Barlow,
ante, 132 U. S. 271,
132 U. S. 281,
and MR. JUSTICE FIELD, in delivering the opinion, quotes with
approval the language of Baron Parke in
Kelly v. Solari, 9
M. & W. 54, 58, that
"where money is paid to another under the influence of a mistake
-- that is, upon the supposition that a specific fact is true which
would entitle the other to the money, but which fact is untrue, and
the money would not have been paid if it had been known to the
payer that the fact was untrue -- an action will lie to recover it
back, and it is against conscience to retain it,"
and adds:
"Reasons for the application of the rule are much more potent in
the case of contracts of the government than of contracts of
individuals, for the government must necessarily rely upon the acts
of agents whose ignorance, carelessness, or unfaithfulness would
otherwise often bind it, to the serious injury of its
operations."
Nothing more need be said on this point, and this brings us to
the real question in the case.
Claimant contracted to carry the mails "from Salinas, by Santa
Rita and Natividad, to Gabilan, 15 miles, and back." The time to be
taken on the trip was specified at six hours each way. There is no
ambiguity in this contract from which a doubt could arise as to
whether the return route was to be
Page 132 U. S. 652
identical with the outward route. Where places are designated as
on the line of a mail route from one point to another and back, no
reason is perceived for their omission on the return. There may be
instances where retracing the road is not deemed important, or is
impracticable in view of particular exigencies; but, if so, the
difference in route would be specified. And where the
transportation is for a given number of miles and back, this does
not mean the number named one way and an indefinite and less number
the other.
The contractor was clearly required to return to Salinas from
Gabilan by the same way he went to Gabilan from Salinas.
The Court of Claims did not take any other view of the language
of the contract, but determined the case to the contrary upon the
ground that the contract had been otherwise
"construed by the claimant, and the responsible power of the
defendants, and that construction became and was the contract at
the time the services were performed, covered by the period of
deductions."
This conclusion is reached as to the Post Office Department upon
the reasoning that as
"it was the duty of the postmasters connected with the mail
route at the termini to report to the Department the manner in
which the service was performed, and the presumption is that they
performed their duty, and that the Department was advised not only
during the time of the performance of the contract in controversy,
but the antecedent contracts, covering the same service embraced in
contract No. 46,118,"
and as the evidence was
"that on October 23, 1878, the Acting Second Assistant
Postmaster General certified to the Auditor of the Treasury for the
Post Office Department that for the quarter ending September 30,
1878, there had been no failure or delinquency in the execution of
the contract upon the part of the contractor,"
and as
"it is safe to assume that for all preceding payments, the same
certificate was made, based upon reports furnished by the
postmasters connected with route No. 46,118,"
the acts of "the responsible officers of the Department, being
in possession of the same information and knowledge" as the
postmasters,
"commit the defendant to the construction of the agreement as
placed upon it by the parties who performed
Page 132 U. S. 653
the labor of its execution, and who were cognizant of the mode
in which it was performed."
The Department did not direct or affirmatively permit the
contractor to pursue the course he did, and if he could recover in
whole or in part upon the ground of an acquiescence equivalent to
assent in a certain mode of dealing with the subject matter of the
contract, the burden was on him to show knowledge or information by
the Department of his conduct in the premises. No evidence to
establish such knowledge or information having been adduced, the
case was made to rest upon the presumption that the postmasters at
the termini where the schedules of the time of the arrival and
departure of the mails were kept, and registers thereof made and
returned, were acquainted with the terms of the contract and
claimant's noncompliance therewith, and this being presumed upon
the further presumption that they must have reported the failure in
performance to the Department.
In
United States v. Ross, 92 U. S.
281,
92 U. S. 284,
Mr. Justice Strong, speaking for the Court, says:
"The presumption that public officers have done their duty, like
the presumption of innocence, is undoubtedly a legal presumption,
but it does not supply proof of a substantive fact. Best, in his
Treatise on Evid. sect. 300, says:"
"The true principle intended to be asserted by the rule seems to
be that there is a general disposition in courts of justice to
uphold judicial and other acts, rather than to render them
inoperative, and, with this view, where there is general evidence
of acts having been legally and regularly done, to dispense with
proof of circumstances, strictly speaking, essential to the
validity of those acts, and by which they were probably accompanied
in most instances, although in others the assumption may rest on
grounds of public policy."
"Nowhere is the presumption held to be a substitute for proof of
an independent and material fact."
Section 3849 of the Revised Statutes provides that
"Every postmaster shall promptly report to the Postmaster
General every delinquency, neglect, or malpractice of the
contractors, their agents or carriers, which comes to his
knowledge. "
Page 132 U. S. 654
By none of the findings of fact is it shown that the delinquency
in question ever came to the knowledge of the postmasters at the
termini of this mail route. But under Finding VI, it appears
that
"on March 22, 1882, Second Assistant Postmaster General
addressed a letter to the postmaster at Natividad and received
information from him on April 6, 1882, that the mail was not
carried from Gabilan by way of Natividad and Santa Rita, and that
such had been the practice since the present contractor had the
contract. The postmaster at Santa Rita certified to the Postmaster
General that such had been the practice since he became postmaster.
The date of the letters as to the continuance of the mode of
carrying the mails was May 1, 1882,"
and, from Finding III, that the Postmaster General instantly
repudiated that manner of carrying the mails, and that they were
not so carried for the remaining quarter under the contract.
Of course, the postmasters at Santa Rita and Natividad knew that
the mails did not come back through those places, but it does not
follow that they were aware that the contractor was obliged so to
carry them. Indeed, as they made no effort to have this state of
things remedied, so far as appears, it is rather to be presumed
that they were not aware that it was the result of the delinquency
of the contractor.
The fact of knowledge on the part of the postmasters of the
delinquency, from which the inference is drawn that they reported
it, was a fact to be proven, and not to be presumed. If they knew
of the delinquency, it was undoubtedly their duty to report it, but
it is not to be assumed that they did report it without some
evidence of such knowledge, and, upon this record, the irresistible
inference is that the delinquency, if reported, would not have been
permitted to continue.
The certificate of the Second Assistant Postmaster General is
dated October 23, 1878, and states that the mails had been carried
"without any failures or delinquencies, so far as shown by returns
received, for the quarter ended September 30, 1878." As the
contract was a plain one, and was not performed according to its
terms, we think this certificate
Page 132 U. S. 655
indicates clearly that the "returns received" did not show the
nonperformance. So far from strengthening the alleged presumption
that the postmasters reported the facts as they existed, its effect
is to the contrary. What they did report in fact is not shown, and
inasmuch as under Finding VI no other inference can be drawn than
that the first information that the Postmaster General had that the
mail was not carried from Gabilan by way of Natividad and Santa
Rita was April 6, 1882, we cannot accept the conclusion that the
responsible officers of the Department were in possession of
information and knowledge of the conduct of the contractor before
that time, and acquiesced in the manner in which he carried the
mails during the period in question or during the preceding years,
in respect to which it is found that he so operated the route under
a similar contract.
We can find nothing in the findings to justify us in holding
that the Department paid this claimant the full measure of his
compensation prior to March 31, 1882, with knowledge of the manner
in which he was performing the work, or that the Department ever
put the interpretation upon the contract which is now contended
for, or induced the contractor to enter into the contract by reason
of any such interpretation on its part. The deduction of $746.25
was properly made, and the conclusion of law on the facts found was
erroneous.
The judgment is reversed, and the cause remanded, with
directions to enter judgment for the United States.
