38 Ct. Cl. 574 | Ct. Cl. | 1903
Lead Opinion
delivered the opinion of the court:
As may be discovered by reference to the findings of fact, the claimant herein was given three separate contracts for the transportation of mails in covered regulation mail wagons, one in Boston, another in Brooklyn, and still another in Omaha.
There are items for compensation in the cases of all the contracts for service, claimed to have been rendered at defendants’ request outside the terms of the contracts, as it has been alleged, and much argument has been urged upon our attention in support and refutation of the respective contentions of the parties in this regard. In addition to these items of
The chief claim growing out of the Boston and Brooklyn contracts is for a discontinuance by the Postmaster-General of all the service described in, and which was being performed under, those contracts, resulting, as has been argued by claimant, in a breach of the contracts by the defendants, and consequent damage to. him; Both the right of the claimant to compensation for alleged extra services, and to damages for the termination of the services of the claimant, as was done, may be disposed of by correct interpretations of the contracts themselves.
In every essential particular, as relates to the points in question, the contracts are alike, and in them claimant agreed to perform all new, or additional, or changed covered regulation wagon, mail-messenger, transfer, and mail-station service that the Postmaster-General might order during the contract term, without additional compensation, whether caused by change of location of post-office, stations, landing, or the establishment of others than those existing at the date of the contract, or rendered necessary, in the judgment of the Postmaster-General, for any cause, and to furnish such advance wagons or extra wagons from time to time for special or advance trips as the Postmaster-General might require as a part of such new or additional service; that the Postmaster-General might change the schedule and termini of the route, vary the routes, increase, decrease, or extend the service thereon, without change of pay; and that the Postmaster-General might discontinue the entire service whenever the public interest, in his judgment, should require such discontinuance, but for a total discontinuance of service claimant should be allowed one month’s extra pay as full indemnity.
In support of the right to recover for the items of extra service, as he has described them, claimant has produced
It is also insisted that the change of part of the service from covered regulation wagon to street-railway service was unwarranted by the contract. We are unable to give effect to the terms of the contract giving authority to vary the routes, increase or decrease or extend the service thereon, without supporting the change to street-railway service, the only effect of which was-to decrease the service undertaken by claimant, and which was clearly authorized by the contracts. The cause or reason why such change, or decrease of service, might be made was not stated in the contracts, but left to the discretion of the Postmaster-General. It is true the contract provided
After the service had been decreased, as stated, the Postmaster-General submitted to claimant a proposition, or suggestion, that he voluntarily relinquish part of the contract price for the continued performance of the services remaining after the change of a part thereof to the street railways, but claimant declined, in which, no doubt, he was clearly within his rights. In other words, he was under no obligation, under the contracts, .to continue at a reduced price. So, therefore, the proposition and its rejection had no effect whatever upon the rights of either party, as defined by the contracts, and such were left to be detérmined bjr the provisions thereof, according to the terms and stipulations contained therein. The contracts gave to the Postmaster-General authority to discontinue the entire service whenever the public interest, in his judgment, should require such discontinuance, the claimant in such case to be allowed one month’s extra pay as full indemnity, and this he did in the Boston and Brooklyn contracts.
Against this action of that officer it is argued that he discontinued the service because claimant declined to continue at a reduced rate, but we have not found the action of the officer was so influenced.. We must presume, nothing appearing to the contrary — and it does not — such action was influenced solely because, in his judgment, the public interest required the discontinuance of claimant’s services under the contracts in question. We can see, also, there was good reason for such conclusion. The service had been rightfully decreased, under the stipulations of the contracts, until the services remaining to be performed were not reasonably worth the original contract rate, and to have continued its payment would have been contrary to public interests, and, while claimant was under no obligation to continue in -the service at a reduced rate, the head of the Department was obligated, as well by the duties of his high office as the provisions of the contract, to subserve the public interests in taking care
It is insisted, however, that by the contracts was meant the discontinuance of the service entirely — that is, an abandonment of all mail service in the cities in question. The mere statement of this position, we think, is its own demolition. It is unreasonable to believe that it was in the mind of anybody, when the contracts were made, that all mail service in any of the cities named would ever be abandoned. Such clearly was not the intention of the parties in the use of the language employed. That which was intended, however, and by the words of the contracts accomplished, was that the performance of the entire service by the claimant might be discontinued by the Postmaster-General whenever the public interest, in his judgment, required it. The power reserved in the contract to the Postmaster-General to discontinue the entire service, whenever the public interests in his judgment should require it, was the same, and none other, than the power to annul the contract when his judgment advised that it should be done (Garfielde v. The United States, 93 U. S., 246); and this being true, the only effect of such annulment would be to discontinue the further performance by claimant of the service described in the contract, and not an abandonment, for future time, of the mail service in the cities mentioned, to be let and performed as in other cases.
In conformity to the views herein expressed, the 'petitiou of the claimant should be dismissed, and it is ordered accordingly.
Dissenting Opinion
dissenting:
1. Mr. elustice Davis, in the case of Otis (20 C. Cls. R., 315), laid down as the rule of construction for these mail-messenger contracts of the Post-Office that the “new or additional mail-messenger or transfer service” which is to be performed “without additional compensation” must be construed to mean service similar in nature to that required by the contract. Ho also held that a contract prepared at the Post-Office, leaving the contractor no choice as to form or phraseology, must be construed in a doubtful case in favor of justice and against the Government. A more sound and just
I perceive nothing in the present case which justifies me in departing from the decision in the case of Otis, followed as it has been bj- similar decisions in successive cases.
In previous cases it has been held that there is a difference “in kind” between a “ mail station ” and a “receiving station.” The difference in kind between a street car and a post-office seems to me to be much more radical than the difference between a receiving station and a mail station. This system of carrying the mails on street cars did not exist when the contract was made; the claimant did not agree to meet street cars; he did not agree to meet street cars on time; he did not agree to wait for street cars behind time. The Postmaster-General had no right to try this experiment in city mail transportation at the claimant’s cost. As was said in a recent case, ‘‘a new system of receiving stations” is not “new or additional transfer or mail station service,” and “extra service” is not new or additional service. For the one the contractor can recover; the other must be performed without additional compensation. (Union Transfer Co. ’s Case, 36 C. Cls. R., 216.)
2. It is well settled that where a contract provides that additional work or service or material may be ordered only by a designated officer, such as the head of a Department, a subordinate can not bind the defendants by directing the contractor to do additional work, even though the defendants receive a benefit therefrom. That is to say, if the Secretary of the Treasury intends to erect a building at a cost of 1100,000, and stipulates that there shall be no additional work done, except when ordered by himself, the officer under whom the work is done can not make the defendants pay $110,000 for a better building than they contemplated erecting through their Secretary of the Treasury. But it is equally well settled that where service is rendered to the Government, which it needs and is invited by an officer having chai’ge of such work, an implied contract will arise and the claimant will recover in quantum meruit. (Clark v. United States, 95 U. S., 539.)
What are the distinguishing facts in this case? The claimant was a contractor doing mail-messenger service in the city
The similar case of Wesley E. Travis v. The United States (22814) was at the same time dismissed for the reasons set forth in the preceding opinion of the court.
