Official reports and certificates made contemporaneously with
the facts stated, and in the regular course of official duty, by an
officer having personal knowledge of them, are admissible for the
purpose of proving such facts.
On the trial of an action brought by the United States against
the sureties on a bond to secure the performance of a contract to
carry mail, the government makes a
prima facie case on
producing a certified copy from the books of the Auditor for the
Post Office Department of the contractor as a failing contractor,
and showing the amount of his indebtedness, telegrams from the
local postmaster to the Postmaster General to the effect that the
contractor had abandoned the service, and the finding of the
Postmaster General that the contractor was a failing
contractor.
This suit was commenced by the government to recover an amount
alleged to be due on a bond to secure the performance of a contract
to carry mail. The defendants were McCoy, the
Page 193 U. S. 594
contractor and principal in the bond, and his sureties. The
cause was put at issue by a general denial, and was tried in
November, 1899. The government prosecuted error from a judgment of
nonsuit which was entered against it. The Circuit Court of Appeals
for the Ninth Circuit decided that the trial court was
"right in holding that the documents offered in evidence by the
plaintiff were legally insufficient to make out a
prima
facie case for damages on account of the alleged entire
failure of McCoy to perform the service provided in his
contract."
It was, however, held that a
prima facie right to
recover the amount of a fine of five dollars had been established.
The judgment was therefore reversed and the case remanded for a new
trial. 104 F. 669. A second trial took place in May, 1901. At that
trial, the case made by the government was as follows: McCoy, being
the lowest bidder, was awarded a contract for carrying the mails
from July 1, 1890, to June 30, 1894, between the post office at San
Francisco and certain railroad stations and steamboat landings, and
executed the bond which was sued on. On May 3, 1893, the postmaster
at San Francisco telegraphed the Post Office Department that, under
a judgment rendered against McCoy, the sheriff had seized the
wagons used by him in executing his contract, and would sell them
on May the fifth; that the probable result of this sale would be to
render it impossible for McCoy to continue to perform his contract,
and that some temporary arrangement would be necessary, and asking
instructions in the premises. Three days later, on May the eighth,
the postmaster telegraphed the Department that the service had been
absolutely abandoned by McCoy, and that a temporary arrangement had
been made, to last until the Department could act. On the day after
the receipt of this telegram (May 9), the Post Office Department
addressed a letter to McCoy, care of Zevely and Finley, Washington,
D.C. giving the substance of the two telegrams above referred to,
and asking if McCoy intended to carry out his contract. On May 17.
the Department telegraphed the sureties on McCoy's bond, informing
them that
Page 193 U. S. 595
McCoy had failed to perform his contract and inquiring if they
would assume the service. On the same day, the Department by
telegram informed the postmaster at San Francisco that his action
in providing a temporary arrangement for the performance of the
service was approved. On May 18, a telegram was received by the
Department from one of the sureties of McCoy saying that he, the
surety, was unable to perform the contract, and requesting to be
relieved from all future liability on the bond because his
signature thereto had been "improperly obtained." On the same day
(May 18), a finding was made by the Postmaster General that McCoy
was a failing contractor, this finding being evidenced by the
following certificate:
"
State of California. No. 76,475."
"Regulation wagon service, San Francisco, San Francisco County.
Contractor, C.C. McCoy. Pay, $7,700.00."
"Whereas C. C. McCoy, contractor on this route under the
advertisement of September 16, 1889, has failed to perform the
service, he is hereby declared a failing contractor."
"W. S. Bissell"
"
Postmaster General"
"Date, May 18, 1893"
The Department subsequently advertised for proposals for the
remaining period of McCoy's term, and the same was let to one
Popper, and a contract entered into with him on the subject.
Thereupon the auditor of the Post Office Department stated the
account of McCoy as a failing contractor. That account charged on
the debit side the sum paid for temporary service from May 5 to
August 13, 1893, the date when the new contract was awarded, and
also the difference between the amount stipulated to be paid in the
McCoy contract and that which the government had contracted to pay
Popper, the new contractor, from August 14, 1893, to June 30, 1894,
when the McCoy contract would have terminated. The account,
moreover, stated a charge against McCoy of $5, the amount of a fine
which had been imposed on him by the Department during the third
quarter of 1893. McCoy was credited
Page 193 U. S. 596
with the whole sum which he would have earned had he performed
his obligations, the balance to the debit being the amount sued
for, $5,772.99. After the government had shown the facts above
stated, it rested its case, and the defendant offered no evidence
whatever.
The government then requested an instruction in its favor on the
ground that a
prima facie case of liability had been
proven. Exception was taken to the refusal of the court to give
this instruction.
The court charged the jury as follows:
"It will not be necessary for you to retire to consider this
case. You can render a verdict from your seats. This is an action
in which the government sued to recover damages for breach of a
mail contractor's bond -- breach of the contract. The action is
against the contractor and the sureties upon his bond. The
government claims damages for the total abandonment of the contract
without having performed it, and as to that claim, all the evidence
that has been offered on the part of the government is insufficient
to prove that there was an abandonment, there being no testimony of
any witness having knowledge of the fact that the contractor did
fail. The evidence includes the statement of account made up by the
auditing department of the government, in which there appears to
have been a fine of five dollars imposed upon the contractor for a
particular failure, and in accordance with the decision of the
circuit court of appeals for this circuit that evidence is
sufficient
prima facie to entitle the government to
recover the five dollars, and the defendants here in open court
have admitted liability for that five dollars. Therefore your
verdict will be in favor of the government for the sum of five
dollars. I have prepared a verdict which you will select one of
your number to sign as foreman, and that will be your verdict in
the case."
To this instruction the government saved an exception. From a
judgment in favor of the defendant for all but five dollars of the
amount claimed, the government prosecuted
Page 193 U. S. 597
error. The circuit court of appeals affirmed the judgment upon
the authority of the ruling made by it when the case was previously
before it. This writ of error was thereupon prosecuted.
Page 193 U. S. 598
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The assignments of errors and arguments at bar present two
questions for decision: First. Were the copies of telegrams sent by
the postmaster at San Francisco to the Post Office Department
admissible in evidence? And second, if they were, did the certified
copy of the account of McCoy as a failing contractor from the books
of the auditor for the Post Office Department, the telegrams from
the postmaster at San Francisco, and the finding of the Postmaster
General that McCoy was a failing contractor, make out a
prima
facie case for the government? Concerning the first question,
it suffices to say that, although it is urged that the telegrams
were not admissible because they were merely copies of copies, the
originals being on file in the telegraph office from which the
messages were sent, the record does not show that any ruling on
this subject was insisted on in the trial court, and hence no
exception was taken to the introduction of the copies. As the
objection that the telegrams were not the best evidence because
they were merely copies was susceptible of being cured, if insisted
on, it follows that the failure to so insist and reserve the
question was a waiver of the objection. It then remains only to
consider whether, taking into view the whole case as made by the
government, a
prima facie right to recover was
established. Section 889 of the Revised Statutes is as follows:
"Copies of the quarterly returns of postmasters and of any
papers pertaining to the accounts in the office of the sixth
auditor, and transcripts from the money order account books of the
Post Office Department, when certified by the sixth auditor under
the seal of his office, shall be admitted as evidence
Page 193 U. S. 599
in the courts of the United States, in civil suits and criminal
prosecutions, and in any civil suit, in case of delinquency of any
postmaster or contractor, a statement of the account, certified as
aforesaid, shall be admitted in evidence, and the court shall be
authorized thereupon to give judgment and award execution, subject
to the provisions of law as to proceedings in such civil
suits."
The certified account from the books of the auditor for the Post
Office Department which was offered in evidence came clearly within
this statute. The items in that account were ascertained and
established in the regular course of official action by the
Department, and represented disbursements made in the ordinary
course of business for temporary service and under the new
contract, all of which was occasioned by the actual or assumed
default of McCoy. The payments shown by the items therefore
properly appeared on the books of the Treasury Department. The
account was clearly, therefore, competent at least for the purpose
of showing the amount of the indebtedness, if any, existing.
United States v. Stone, 106 U. S. 525. As,
however, the correctness of the items in the account depended upon
proof of the fact of the delinquency of McCoy, the contractor, it
remains to determine whether the evidence introduced by the
government at the trial
prima facie established such
delinquency -- in other words, whether the evidence was sufficient,
in the absence of proof to the contrary, to show that McCoy had
totally abandoned his contract on May 5, 1893. The solution of this
question depends upon the probative force of the official finding
by the Postmaster General that McCoy was a failing contractor,
based as it was upon the official report on the subject made to the
Department by the postmaster at San Francisco.
In
United States v. Dumas, 149 U.
S. 278, the Court considered the Act of June 17, 1878,
20 Stat. 140, c. 259, paragraph 1, which provides:
"That in any case where the Postmaster General shall be
satisfied that a postmaster has made a false return of business, it
shall be within his discretion
Page 193 U. S. 600
to withhold commissions on such returns and to allow any
compensation that under the circumstances he may deem
reasonable."
The facts were as follows: on August 11, 1888, the then
Postmaster General made an order reciting his "being satisfied"
that Dumas had made false returns of business at the office of
which he had been postmaster, and declaring that, in the exercise
of the discretion conferred by acts of Congress, the commissions on
such returns were withheld, and the compensation of the postmaster
was fixed as stated in the order. As a result of this finding by
the Postmaster General, an action was subsequently brought against
the postmaster and his sureties, and it was decided that the order
of the Postmaster General and the certified accounts of the
government, which were produced and which were founded upon such
order, were held to be
prima facie evidence of the balance
due the government.
Moreover, by section 3962 of the Revised Statutes, it is
provided that --
"The Postmaster General may make deductions from the pay of
contractors for failures to perform service according to contract
and impose fines upon them for other delinquencies. He may deduct
the price of the trip in all cases where the trip is not performed,
and not exceeding three times the price if the failure be
occasioned by the fault of the contractor or carrier."
And the second section of the Act of August 3, 1882, c. 379, 22
Stat. 216, provides as follows:
"SEC. 2. Whenever a contractor for postal service fails to
commence proper service under the contract, or, having commenced
service, fails to continue in the proper performance thereof, the
Postmaster General may employ temporary service on the route at a
rate of pay per annum not to exceed the amount of the bond required
to accompany proposals for service on such route, as specified in
the advertisement of the route, or at not exceeding
pro
rata of such bond, in cases where service shall have been
ordered to be increased, reduced, curtailed,
Page 193 U. S. 601
or changed, subsequent to the execution of contract; the cost of
such temporary service to be charged to the contractor, and to
continue until the contractor commences or resumes the proper
performance of service, or until the route can be relet, as now
provided by law, and service commenced under the new award of
contract. All acts or parts of acts inconsistent with the
provisions of this act being hereby repealed."
These provisions, by necessary implication, declare that
whenever the Postmaster General "is satisfied," from evidence which
justify the imposition of fines or the deciding that a postal
contractor has abandoned the performance of his contract, the
Postmaster General may act as authorized in such provisions. It
would seem to be an appropriate act for the Postmaster General to
make distinct official evidence of the fact of such finding, to be
filed among the archives of his office. The pertinency of such an
official finding was, as has been shown, recognized in the
Dumas case, and, when coupled, as it is in the case at
bar, with the reports upon which the finding in the certificate was
based, we think the certificate was legally competent to establish
prima facie the fact that McCoy had abandoned his
contract. It was made the duty of the postmaster at San Francisco,
by section 3849 of the Revised statutes, to
"promptly report to the Postmaster General every delinquency,
neglect, or malpractice of the contractors, their agents or
carriers, which comes to his knowledge."
The reports embodied in the telegrams in question on their face
show that they related to facts which had come to the knowledge of
the postmaster, bearing upon the delinquency of McCoy, particularly
the ultimate fact of total abandonment by McCoy of his contract.
The opinion in
United States v. Corwin, 129 U.
S. 381, contains a clear recognition of the competency,
as evidence, of official communications of this character when made
to those higher in authority, as supporting and giving evidential
weight to findings based thereon. The reports contained in the
telegrams
Page 193 U. S. 602
in question present an application of what is stated in the
opinion in the
Corwin case (p.
129 U. S. 385)
to be
"the well established rule that official reports and
certificates made contemporaneously with the facts stated, and in
the regular course of official duty, by an officer having personal
knowledge of them, are admissible for the purpose of proving such
facts."
The judgment of the circuit court of appeals is reversed;
the judgment of the Circuit Court is also reversed, and the cause
is remanded to the Circuit Court for further proceedings in
conformity with this opinion.
