53 Ct. Cl. 612 | Ct. Cl. | 1918
reviewing the facts found to be established, delivered the opinion of the court:
For the convenience of plaintiff in getting its newspapers to an early morning train an arrangement was made with the postal authorities under which its newspapers would be weighed at the railroad station instead of being carried to and weighed at the post office, and thence taken to the train. The mail wagon, under an arrangement with the contractor or the driver, would call by plaintiff’s place of business, sometimes on its way to the train .from the post office with the regular mail and sometimes by a special trip for that purpose, and get the newspapers. While this plan was in operation the plaintiff decided to secure the benefits of express rates (which were less by one-half than the postal rates for second-class mail matter) on portions of its papers, and, with that object in view, it caused its papers, intended by it to go by mail, to be put into mail sacks, and the portions which it intended to go by express to be wrapped in bundles and labeled “ Express or baggage.” The sacks and bundles were placed in said wagon and were by the driver deposited on a platform, where the regular mail matter was deposited, at the railroad station. Plaintiff notified the express agent of its purpose to send some of its newspapers by express, and, for some time, porters or messengers of the express company took charge of the bundles labeled “ Express or baggage,” and caused them to be transported by express. The defendant’s mail transfer clerk weighed the sacks of papers and they went by mail. During that time the express office and the office of the transfer clerk were located near each other and both opened upon the said platform. Later the express office was removed several hundred feet away from where the transfer clerk’s office was, but the deposit of plaintiff’s papers upon the platform by the driver of the wagon continued as formerly. For about two years, and while the two offices were near each other, there appears to have been no difficulty in handling the papers, as designed for mail or express, but commencing about October 1,1908, plaintiff’s
The course of action here complained of continued from about October 1, 1908, to about April 1, 1913, during which period there was no complaint. The express company’s porters or messengers had ceased to go to said platform and get the bundles marked “Express or baggage.” Just why they ceased to go' does not definitely appear. There is some testimony to the effect that one or more of the messengers had stated that they were informed at the platform that the plan of' delivering papers there designed for express had been discontinued, but from whom that information was derived, if given at all, does not appear.
It seems not improbable that a change of transfer clerks which occurred and a change of location of the express office had something to do with the failure to have the papers go by express instead of by mail.
? Plaintiff having during the period of about four years paid ; the regular second-class mail-matter rate on the papers now ; seeks to recover the sums paid by it as'postage on the weights ; of the papers labeled “ Express or baggage.” The original petition claimed the difference between what it would have cost to send them by express and the regular postal rate, and by an amendment the claim is for the entire amount paid as postage. On its brief, plaintiff says “ the gravamen of the action, of course, is that the United States holds money of this claimant’s which was paid to it under a mistake of fact.” The question for decision is whether from the facts
The money which plaintiff paid and now seeks to recover was, therefore, in no proper sense paid under mistake of fact. It may be conceded that if actual knowledge had come to plaintiff that its papers were being weighed into and transported as mail it would have taken steps to change that practice. But the situation is not sufficient to raise up an implied contract on the Government’s part to return the money received by it for a service that was actually performed.
The court can not say that the rate to be paid for the papers when carried as second-class mail matter shall be less than the statutory rate. The law has established the charge. Nor can we say that the plaintiff should pay nothing for the service which was rendered and from which the plaintiff : got a benefit in the transportation and delivery of its papers.
would be liable if they were suable as an individual for the act of the transfer clerk we need not consider, because if plaintiff’s loss or damage was occasioned by a want of care or the negligent act of the transfer clerk, and without plaintiff’s fault, the Government could not be held responsible therefor in this court. For the negligences or misfeasances of its officers or agents the United States have not consented to be sued. Gibbon's Case, 8 Wall., 269.
The facts not justifying a conclusion that the law raises an implied contract between the parties, the petition should be dismissed, and it is so ordered.