10 N.H. 331 | Superior Court of New Hampshire | 1839
Upon the facts disclosed in this case, the plaintiff was not appointed to any office, by his agreement with the post-office department to carry the mails, on the route specified in the indenture ; nor did he receive any appointment to an office, in consequence of that agreement. His undertaking to carry the mail was a contract. The 10th sec. of the act of Congress, passed March 3, 1825, authorizes the post-master general to advertise, and to make contracts. The plaintiff was by agreement bound to perform certain stipulated services for the department, in transporting the mail from place to place, for a certain compensation to be paid to him.
This being the character of the service to be rendered, there is nothing against public policy in his employing others to assist in performing that service, or to perform it in his behalf. It could not have been in contemplation of the department, or of the plaintiff, that the whole service was to be performed by him. personally. The 7th sec. of the act contemplates that the service may be performed by others than the contractors. It provides that mail-carriers shall be free white persons, and that any contractor who shall employ, or permit, any other than a free white person to convey the mail, shall incur a penalty.
Nor is there any thing illegal in the covenant by the plaintiff that he would aid and assist in having the contract transferred to the defendant, in every reasonable way, by signing proper and fit letters, acquittances and discharges for the purpose. There is no evidence that this part of the agreement bound the plaintiff to do any thing which might not lawfully be done, or that any improper recommendations were within the contemplation of either party. A practice to trans
The substance of the contract, on the part of the plaintiff, is, that he would endeavor to have the defendant substituted as a contractor for that route, in his stead, and yield up the contract to him, if the department would consent to receive the defendant as a contractor ; and in case the department would not consent to the substitution, then that the defendant should carry the mail as if he was a sub-contractor, and be entitled to receive the amount of the compensation, deducting the sum agreed upon ; the defendant stipulating to perform the service, and to indemnify the plaintiff, (who would in that case remain responsible to the department) against any default. There is in this nothing to show that the plaintiff was taking the defendant’s covenant, to indemnify him for the commission of any illegal act, or that he intended to substitute the defendant as a mail-carrier, against the consent of the department. The department might prefer to retain the contract of the plaintiff, and yet have no objection that the service should be performed by the defendant, the plaintiff being responsible that there should be no failure.
And the plaintiff, in agreeing to permit the defendant to carry the mail as if he was a contractor, in case no substitution was made, might well take the covenant of the defendant to indemnify him from any default, because he would remain answerable to the department for those defaults.
If it is supposed that there is any abuse in obtaining and disposing of these contracts, it is for congress to apply the remedy.
Judgment for the plaintiff.
