
    THE UTAH, NEVADA AND CALIFORNIA STAGE COMPANY v. THE UNITED STATES.
    [No. 19738.
    Decided April 25, 1904.]
    
      On the Proofs.
    
    The contract is similar in form to numerous mail-messenger contracts which have been before the court in previous cases. The case is new and peculiar in this: That in the city of New York the Post-Office Department in effect established a second general post-office, and thereby duplicated substantially the claimant’s service, though without the variation in details which in previous cases have been deemed essential to constitute a service different in kind and character for which a contractor can recover additional compensation.
    I.It must be regarded as the settled rule of decision in this court that where “ new or additional mail-messenger or transfer service ” is not different in kind and character from that specified in the contract, the contractor can not recover; but where it is different in kind and character, he may.
    II. Where the defendants in effect duplicate the post-office system in a city, though all the details of the service remain unchanged, the additional service involved must be held to be •different in kind and character, for which the contractor may recover.
    III. When the magnitude of the change is so great that it could not have been foreseen by the most prudent and experienced business man, it is service not contemplated by the contract.
    IV. The term.“dispatch” is a technical one in the postal service, and means a mass of matter to be sent to a certain place at a certain time. The term “ trip ” is also technical, and refers to the wagon which will carry the whole or a part of the dispatch.'
    V.Where the advertisement for proposals represented that there were 2 stations on an elevated street railroad which were each served by 62 trips when in fact there were just double that number of stations, and the business required double the alleged number of trips, the representation, being of a matter pecidiarly within the knowledge of the Department, must be regarded as in the nature of a warranty.
    VI.Where the contract required the contractor “ to take the mail from and deliver it into the post-offices, mail stations, and cars,” the burden was on him of carrying it from his wagons up to the stations or cars of an elevated railroad.
    
      
      The Reporter's statement of the case:
    The following are the facts of the case as found by the court:
    I. The claimant is a corporation, 'duly created, organized, and existing under the laws of the State of Utah, having its principal office in the city of Chicago, State of Illinois.
    II. On September 15, 1892, the Postmaster-General caused to be published an advertisement inviting proposals for the performance of “ covered regulation wagon mail messenger, transfer, and mail station service ” in the city of New York, State of New York, on mail route No. 207003, for the term from July 1, 1893, to June 30, 1897.
    III. The “ Instructions to bidders,” contained as a part of said advertisement, were as-follows:
    “ 1. The foregoing schedule shows the service requird August 15,1892, as near as can be stated. Bidders must inform themselves of the amount and character of the service that ■will be required during the next contract term.
    
    
      “ The statements of probable additional service that may be necessary on the routes under this advertisement are given so that bidders may be as fully advised as possible of the amount of service likely to be required. It will not, however, limit the liability of the contractors to perform all service that may become necessary without additional pay.
    “ 2. The contractors under this advertisement will be required to perform, without additional compensation, any and all new or additional service that may be ordered from July 1, 1893, or at any time thereafter during the contract term, whether between post-offices and railroad stations, between post-offices and steamboat landings, between post-offices and mail stations, or between the several railroad stations, steamboat landings, and mail stations now established or that may hereafter be established, whether caused by the establishment of new or by change of site of existing post-offices, railroad stations, steamboat landings, or mail stations within said cities or caused by the alteration of the routes made necessary by any other reason. Bids must be made with this distinct understanding, and must name the amount per annum for the whole service and not by the trip.
    “ 3. There will be no diminution of compensation for partial discontinuance of service, or increase of compensation for new, additional, or changed service that may be ordered dim-ing the contract term; but the Postmaster-General may discontinue the entire service on any route whenever the public interest, in his judgment, shall require such discontinuance, he allowing as full indemnity to the contractor one month’s extra pay.
    “ 4. The Postmaster-General may annul a contract for repeated failures; for violating the postal laws; for disobeying the instructions of the Post-Office Department; for refusing to discharge a driver or any person having charge of the mail when required by the Department; for transmitting commercial intelligence or matters which should go by mail contrary to the stipulations herein or for transporting persons so engaged; whenever the contractor shall become a postmaster, assistant postmaster, clerk in a post-office, or member of Congress, and whenever, in the opinion of the Postmaster-General, the service can not be safely continued or the laws maintained on the route.
    “ Fines will be imposed for neglect of duty.
    “ 5. The Postmaster-General may, in his discretion, continue in force, beyond its express terms for a period not exceeding six months, any contract made under this advertisement until a new contract with the same or other contractors shall be made.
    “ 6. The distances' given are believed to be substantially correct, but no additional pay will be allowed should they be greater than herein stated.
    “ Bidders must inform themselves as to the distances, the running time, the weight of the mails, the condition of hills, streets, toll bridges, ferries, and obstructions of all kinds wherebjr expense may be incurred, and as to the probable increase, additional service, or changes likely to be rendered necessary. Claims for additional pay based on such grounds, or for alleged mistakes or misapprehensions as to the service required, or for bridges destroyed or ferries discontinued can not be considered.
    “ 7. Foreign mails in transit across the territory of the United States shall, within the meaning of this advertisement, be deemed and taken to be mails of the United States.
    “ 8. The transfer service shall include the conveyance of all post-office supplies arriving for the.city post-office or for transit through the city.
    “ 9. Contractors will be required to convey on the driver’s seat of each wagon, whenever necessary, one railway post-office clerk, a substitute, or a messenger.
    “ 10. Drivers must be over sixteen years of age, of good moral character, and able to read and write the English language. They must take the oath required by law, and must wear the prescribed cap or hat.
    “ 11. All service shall be performed in regulation wagons, unless otherwise mentioned >in statement of route. Full particulars as to style and construction of wagons required may be obtained on application to the Second Assistant Postmaster-General, Washington, D. C. Wagons constructed according to the style adopted by the Post-Office Department, of a size about midway between the large two-horse and the large one-horse wagon, preserving the plan' of the former, will be permitted, but for these at least two horses shall be used. The wagons shall be kept painted and varnished in a thorough manner, and ornamented according to specifications. They must also be frequently washed and kept clean and in good condition. New wagons are not required by the specifications, but only wagons of the prescribed pattern, in first-class condition, and to be as substantially constructed as nexo wagons. First-class horses shall be used. The wagons, besides being constructed in accordance with the plans and specifications, must be provided with an additional device in the nature of an iron rod connecting the doors with the driver’s seat, so that the doors cannot be opened without the knowledge of the driver.., A similar device is now in use on the wagons at New York, N. Y.
    l£ 12. When mails are delayed in arrival wagons must be kept at the depots or landings until the arrival of such mails, and the same be conveyed to the post-office without detention. Except in cases of accident, wagons containing mail must not bo opened, or the mails therein contained changed while in transit. The mails must be carried inside of the wagons, and not on the outside or on the seat with the driver, and in no case shall any person be allowed to ride inside of the wagon containing mail.
    “ 13. The equipment of the contractor shall be subject to monthly inspections, and the refusal or failure of any contractor to keep his wagons, horses, and harness in good order and appearance, or to furnish proper drivers, so as to perform the service in a style creditable to the Department, shall •be sufficient cause for the annulment of his contract and the reletting of the service at his expense.
    14. Specifications for cap and hat: Cap — To be of all wool blue flannel of good quality, three and one-fourth (3-J) inches high, solid leather fronts one and three-fourths (If) inches deep, with one (1) small regulation P. O. D. button on each side, a silver wreath in front, inclosing the words ‘ U. S. Mail,’ and to have one oiled, linen cover. Hat — From June 16 to September 15 of each, year, in lieu of the cajo, a straw hat with rim not to exceed three and one-half (3-J-) inches in width and a crown not to exceed four (4) inches in height may be worn. A silver wreath inclosing the words ‘ U. S. Mail ’ shall be placed on the front of the hat.
    
      “ 15. The wagons, horses, harness, and drivers are to be at all times subject to the approval and control of the postmaster; and the mails are to be taken from and delivered into the post-offices, mail stations, steamboats, and cars at such points and at such hours, under his direction, approved by the Postmaster-General, as will secure proper dispatches and connections, and at the contractor’s expense for tolls and ferriage.
    “ 16. The number of wagons required must be sufficient, in the opinion of the postmaster, for the prompt and proper performance of the service.
    “ 17. The contractor will be required to provide and keep on hand a sufficient number of extra wagons to take the place of those which may be temporarily disabled, delayed, waiting for trains, or withdrawn from service for repairs, or required by the increase of service, so that the service shall always be promptly performed in regulation wagons.
    “ 18. Every proposal must be accompanied by a bond with two or more sureties approved by a postmaster, and in cases where the amount of the bond exceeds five thousand dollars ($5,000) 'the approval must be by a postmaster of the first, second, or third class.
    “ 19. Sureties on the bond of a bidder must take an oath before an officer qualified to administer oaths that they are the owners of real estate worth, in the aggregate, a sum double the amount of said bond, over and above all debts due and owing by them, and all judgments, mortgages, and executions against them, after allowing all exemptions of every character whatever. A married woman will not be accepted as a surety, either on the bond of a bidder or upon a contract. Accompanying the bond of a bidder, and as a part thereof, shall be a statement of the sureties, under oath, showing the amount of real estate owned by them, brief descriptions thereof, and its probable value, where it is situated, and in what county and State the record evidence of their titles exists. Any surety who swears falsely to this statement is deemed by the law guilty of perjury, and is punishable as is prescribed by law for that crime.
    “ 20. There should be but one route bid for in a proposal. Consolidated or combination bids (‘ proposing one sum for two or more routes ’) can not be considered.
    “ 21. Bidders are cautioned to forward their proposals in time to reach the Department, or to file them by the day and hour named in this advertisement, as bids received after that time will not be considered. If sent by mail or express, ample time should be allowed for their transit, as they can not be deemed to be received at the Department until actually delivered at the contract office;' neither can bids be considered which are without the bond, oath, or certificate required by section 245, act of June 23, Í874, and section 246, act of August 11, 1876. No withdrawal of a bid will be allowed unless the withdrawal is received twenty-four hours previous to 4 p. m. December 1,1892.
    “ 22. No contract for carrying the mail shall be made with any person who has entered’, or proposed to enter, into any^ combination to prevent the making of any bid for carrying the mail, or who has made any agreement, or given or performed, or promised to give or perform, any consideration whatever to induce any other person not to bid for any such contract.
    “ 23. In case of failure of the accepted bidder to execute a contract within the prescribed time, or of the abandonment of service during the contract' term, the service will be relet at the expense ox the failing bidder or contractor, and any accepted bidder who shall Avrongfully refuse or fail to enter into contract in due form, and to perform- the service described in his proposal, may be deemed guilty of a misdemeanor, and on conviction thereof be fined and imprisoned therefor.
    
      “ 24. The Postmaster-General reserves the right to suspend the award of contract on any route for a period not exceeding thirty days after the date fixed in this advertisement, with a corresponding allowance of time for the execution of contract, and to reject all bids on any route .whenever in his judgment the interests of the service require it; and also to disregard the bids- of failing contractors and bidders, and also to disregard bids accompanied by bonds on which there appears as surety the name of a person who has been declared a failing contractor or bidder, or been barred from bidding for any reason whatever.
    “ 25. Postmasters are cautioned, under penalty of removal, not to approve the bond of any bidder before the proposal is completed and the bond is signed by the bidder and his sureties, and not until entirely satisfied of the sufficiency of the sureties. They are also cautioned not to divulge to anyone the amount of any proposal certified by them. Doing so will be sufficient cause for their removal.
    “ 26. No postmaster, assistant postmaster, or clerk employed in any post-office shall be a contractor, or concerned in a contract for carrying the mail.
    “ 27. Bidders are requested to use the blanks for proposals furnished by the Department, which may be obtained at the post-office on each route herein advertised. For information 
      
      relative to the service and its requirements bidders are requested to apply to the postmaster at the city where the service is to be performed.
    
    “ 28. Proposals should bo inclosed in envelopes, sealed, and superscribed ‘ Proposals for covered regulation wagon mail messenger, transfer, and mail station service, city of-:—
    and addressed to the Second Assistant Postmaster-General, Post-Office Department, Washington, D. C.
    “John WaNamaker,
    
      “Postmaster-General
    
    IV. Pursuant to said advertisement the claimant submitted a proposal for the performance of the service therein described for the city of New York, which was accepted by the defendants, and a contract was entered into, being Exhibit C annexed to the petition.
    V. During the period for which suit is brought, the claimant performed the service specifically described in the schedule of the advertisement, claiming that, in addition thereto, it performed, as required by the defendants, and under protest, other service hereinafter set forth, not required by the terms of the contract.
    VI. At the time of the advertisement for proposals aforesaid, September 15, 1892, the service therein referred to and hereinafter particularly described, involved a transportation of the mails of, approximately, 913,674.22 miles per annum, and in said advertisement bidders were notified that the probable annual increase in said service would amount to 6,718.40 miles per annum, as shown by Exhibit B attached to said petition.
    VII. Between the date of said advertisement for proposals (September 15, 1892) and the time when the claimant under his said contract was to commence the performance thereof (namely, July 1, 1893), additional service was required which increased the amount of annual mileage on said last-named date to 1,012,604.54 miles.
    VIII. On August 22,1893 (something less than two months after claimant entered upon the service of transporting the mails under said contract), the Second Assistant Postmaster-General, on behalf of defendants, made the following order:
    
      “ PoST-OfFICE DEPARTMENT,
    “ Office of Seoond Assistant Postmaster-General,
    “ Railway Adjustment Division,
    “ Washington, D. G., August 22,1893.
    
    
      “ Sir: You are informed that the following order has this day been made on route--No. 207003, covered regulation-wagon service, at New York, N. Y.:
    “ ‘ From September 1, 1893, require contractor to perform' additional mail-messenger ■ service for the supply of distribution station, Forty-fourth street and Lexington avenue, as per following statement, or more frequently if necessary, without additional pay, in accordance Avith the terms of his contract.’
    “ The statement referred to in the above order is inclosed herewith.
    “ Very respectfully, J. Lowrie Bell,
    “ Second Assistant Postmaster-General.
    
    
      u Utai-i, Nevada, and California Stage Co.,
    “ E. J. Travis, President,
    
    “ No. 525 E. 15th street, New Yorh, N. F.”
    
      Additional, mail-messenger service.
    
    
      
    
    
      
      Additional mail-messenger service — Continued.
    
      
    
    Under date of October 23,1893, Second Assistant Postmaster-General J. Lowrie Bell, on behalf of the defendant, made the following order:
    “ PoST-OfEICE DEPARTMENT,
    “ Office of Second Asst. Postmaster-General,
    “ Bail way Adjustment Division,
    “Washington, D. 0., Oct. 23,1893.
    
    “ Sir: Yon are informed that the following order has this day been made on route No. 207003, regulation-wagon service, at New York, N. Y.: From Oct. 25, 1893, require contractor to perform service as follows (or more frequently, if necessary), without additional compensation, in accordance with the terms of his contract:
    
      “Additional mail-station service.
    
    
      
    
    “ Very respectfully, J. Lowkie Bell,
    “ Second Asst. P. M. Geni.
    “ Utah, Nev. and Cal. Stage Co.,
    “ E. J. Teavis,
    “ Prest., 5%5 East 15th St.., Neto York, N. Y.n
    
    IX. Under the preceding arrangement ordered by the Department all first-class 'matter (letters) previously collected in the district of Station IT continued to be received and handled there; massed matter made up by States for the east, north, and west, which had previously been sent to the general post-office for distribution, was sent to the Industrial Branch to be distributed; the south and west mail was taken there during the iieriod in suit and assorted; and all of the second-class bulky matter of publishers, above Fourteenth street, which had previously been received at Station O, was received at the Industrial Buildiug; also third and fourth class matter mailed in uptown stations, which had previously come to the general post-office, was sent to the Industrial Building, thereby relieving the general post-office from handling that matter.
    X. The orders aforesaid required the claimant to carry the mails from the new station,-designated as “ the distributing station, at Forty-fourth street and Lexington avenue ” (known in the record as the Industrial Building Station), direct to the various railroad stations and other points to which mail was then being carried from the general post-office. The aggregate of distances from the Industrial Building to the railroad stations and other points, as given in said orders, is 27.28 miles; the aggregate of distances from the general post-office to the same railroad stations and other points is 20.85 miles.
    XI. The result of the orders aforesaid was that claimant was compelled to increase the number of wagon trips from October 25, 1893, to February 6, 1895, over and above what would have been the normal increase; and increased the distance to be traveled by the wagons, over and above the normal increase, 311,939 miles for the period from October 5, 1893, to February 6,1895.
    XII. By establishing the distribution station in the Industrial Building and issuing the orders above set forth, there was no diminution in the number and character of the runs to and from the general post-office, nor was the mileage at said general post-office thereby diminished. To perform this extra service to and from the Industrial Building the claimant was required to purchase from 80 to 100 additional horses, and from 32 to 38 additional wagons; to put on from 45 to 46 new runs, and to employ from 33 to 50 additional men — drivers, hostlers, etc. The orders resulted in such increased speed in carrying the mails from the Industrial Building to some of the railroad stations that in obeying them it ivas necessary to violate the city ordinances as to the rate of speed; it largely increased the wear and tear on the wagons; it injured and shortened the period of usefulness of the horses, some of them dying from overexertion in hot weather by reason of the fast driving made necessary by the short time allowed to make the various trips.
    XIII. The increase of runs to the railroad stations outside the city of New York, made necessary by the establishment of the extra service from the Industrial Building, increased the necessary expenditure by claimant, in the matter of ferry tolls, in the sum of $9,950.22.
    The additional service trips, during the period aforesaid, made by the claimant, under the requirements of the orders above stated, in finding viii, were worth, at a fair and reasonable compensation, including therein the expense of ferry tolls, the sum of $68,483.
    
      XIY. At no time prior to making said bid, or prior to entering into said contract, was any intimation or information given by tbe defendants’ officers to claimant that they contemplated or intended the establishment of a service at the Industrial Building.
    XY. The court further finds, at' the defendants’ request, that in March, 1893, the defendants rented the-premises in Industrial Building at Forty-fourth street and Lexington avenue for postal purposes,- in order to relieve the general post-office, the available space in which had become inadequate to accommodate the increased volume of business. A postal station was established therein, and the contractor was required to transport the mails between it and the various railroad stations and some postal stations. This postal station was constituted as follows:
    Station H was moved May 1, 1893, from its location at No. 156 East Fifty-fourth street into the above-named premises.
    Thereafter, on September 1, 1893 (service began October 4, 1893)', there was inaugurated in the same premises and in connection with Station H' the distribution department, which was variously known as “ Distribution station,” “ Industrial station,” and “ Station IT, distribution department,-” and the two together were sometimes known as “ Industrial Branch station.”
    Before and after the removal of Station H, as above stated, it was in all respects a branch -post-office, at which there were collections and deliveries of mail by carriers, distribution of mail matter for dispatch, registration of letters, sale of stamps, and the issuing of money orders.
    Both that part of the Industrial Branch which had been known as Station H and that part which was referred to as “ Distribution station,” etc., were situated on the same floor of the Industrial Building, and were at all times connected by a passageway. The former ivas in charge of a superintendent of station, and the latter was, until January 5, 1895, under the direction of an assistant of the superintendent of mails of the general post-office. Station IT continued the collection and delivery of mail by carriers, the sale of stamps, the registration of matter, and sale of money orders, while the distribution department had charge of the distribution of second, third, and fourth class matter. The' collectors for Station H proper carried their collections of mail directly into and deposited them in the distribution department, and the distribution for dispatch' and the assortment for city delivery were made there.
    After the equipment of Industrial Branch Station, second-class mail matter mailed by publishers and originating north of Fourteenth street was mailed at that station.
    This mail matter had previously been mailed at the general post-office and at Station O, at which points the distribution had theretofore been made and dispatch made to the several railroad stations, as specifically stated in the advertisement. Thereafter no further such mailing of second-class matter was made at Station O, and all disjiatches of said mailed matter for the West and New England States and to and from Grand Central station were made from the Industrial Branch Station, a distance of approximately G blocks, instead of from the general post-office, 3^ miles distant, and from Station O, If miles distant, as theretofore.
    The congested state of the general post-office on account of lack of adequate space, for the remedy of which Station O had been established some years before, was well known for some time prior to the advertisement and proposal for this service.
    XVI. The advertisement issued by the Post-Office Department, under date September 15, 1892, inviting proposals for covered regulation wagon mail messenger, transfer, and mail station service which was made a part of the contract between defendants and claimant, undertook to give a schedule of the service in said city as the same existed and was in operation on August 15, 1892, as stated in said1 advertisement, “ so that bidders may be as fully advised as possible of the amount of service likely to be required.”
    The advertisement above named inadvertently stated' the service in operation August 15, 1892, between the Manhattan Elevated Railroad stations and the general post-office and certain branch post-offices at but one-half the number of trips actually required. . Consequently the claimant was required to and did perform the number of trips which were actually performed theretofore, but which were double the number thus specified.
    Claimant performed said additional service under protest made in January, 1894; and in thus carrying the mails from mail stations F, IT, Y, K, W, G, E, and O to the nearest elevated-railroad stations, and from these latter stations back to the said mail stations, from July 1, 1893, to the commencement of this suit, to wit, February 6, 1895, it made 181,728 trips, for which extra service a fair and reasonable compensation, including the foot service of delivering the mails into the railroad stations, is the sum of $14,538.
    XVII. The “ foot service ” for which extra compensation is claimed consisted in carrying the mails up the stairways and delivering them to the Manhattan Elevated Railroad Company, at the stations on said elevated railroad nearest to the several mail stations, namely, stations D, F, H, Y, K, L, J, W, G, E, O, and V. Claimant performed this “ foot ” stairway service under protest, as being service not inclhded in its contract, and said extra service so.required and performed during the term from July 1, 1893, to February 6, 1895, necessitated 479,875 trips — a trip consisting of either going up or coming down said stairways, waiting until the arrival of the train, and making delivery of the mail to the messenger on the train; said designation “ trip ” being irrespective of the number of bags contained in any particular mail, or the number of men required to carry it. This service required the employment by claimant of additional men at each said station.
    If the claimant is entitled to recover for this service, a fair and reasonable compensation therefor will be the sum of $14,300 in addition to the amounts set forth in Findings XIII and XVI.
    XVIII. Said elevated-railroad stations were not situated on the surface of the streets, but were' at the same elevations as the railroad tracks, and could only be reached by ascending the steps from the surface of the streets provided and used for that purpose. Prior to. the commencement of claimant’s term of service it ha¿ been customary. for the contractor generally to exchange the mail with the Government’s messengers on the platform of the station at the cloor of the car.
    Upon the commencement of the claimant’s term of service it did, without protest, begin the performance of the service between the general post-office and the Manhattan Elevated Railroad station at Park place, and between postal branches O, E, G, W, J, D, F, H, and K, and the Manhattan Elevated Railroad stations at indicated streets, by the continuation of the method of such performance theretofore used under permission of the preceding contractor, namely, by messengers without wagons or carts in some cases and by carts in others. Subsequently, in accordance with the manner adopted by the claimant as above stated, the Department formally authorized, by order, its performance in ixish carts.
    Thereafter, at the request of claimant, permission was given allowing performance of a portion of said service by messengers without carts or wagons.
    The performance of the service thus referred to included the carriage of the mail up and down the stairways to and from the elevated stations, and no protest as to any portion of it was made by the claimant until mention was made of it in its letter received at the Department January 30, 1894.
    During most of and the latter part of the term of contract next preceding that of the claimant, and at the time of the issuance of the advertisement and the submission of claimant’s proposal, the previous contractor had been required to and did perform this like service up and down the stairs to all elevated stations from all postal stations at which this service was then required. At certain terminal stations where the mails • were heavy the postal employees, under instruction, assisted the contractor’s employees in order to facilitate the dispatches, but were in no wise to assume such service on the x>art of the Government.
    
      Mr. A. A. Hoeliling, jr., and Mr. J. II. McGowan for the claimant.
    
      Mr. George II. Gorman and Mr. Joseph Stewart (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Nott, Ch. J.,

delivered the opinion of the court:

These mail-messenger contracts, in substantially identical language, have been again and again before the court during the last eighteen years. Their provisions have been construed, and both parties, though the amounts involved were large, have remained content with the decisions of the court; that is to say, no case has been appealed. It must, therefore, be regarded as the settled rule of decision of this court that the “ new or additional mail-messenger or transfer service ” which is to be performed “ without additional compensation ” is one thing, and that service which is different in kind and character is another; and that for the former the contractor can not recover, but for the latter he may.

The present case is peculiar and unlike those which have gone before it in this: That the services constituting the principal cause of action were in form “ new or additional,” but in substance a radical and extraordinary departure from the reasonable obligations of the contract. The very magnitude of the service exacted by the Post-Office Department changed the service in kind and character. In form it was “ new or additional;” in substance it was rendered for a new and different system of postal administration in the city of New York of such magnitude that it could not have been anticipated or foreseen by the most prudent and experienced business man who proposed to bid for the service or enter into the contract. It was service different in kind and character, because it was incidental and consequent to the introduction of a condition into the city postal service which had never been there before — the establishment of a new post-office system.

The magnitude of the change is conclusively shown by the leading facts in this case:

In 1892 the postal business in the city of New York had so outgrown the capacity of the general post-office that it was seriously congested, and an enlargement of that building, directly or indirectly, was imperatively and immediately required. To meet this postal exigency, Congress authorized the renting of a building “to be used for general post-office business in said city.'''1 (Act 3d March, 1893, 27 Stat. L., 732.) The Department thereupon rented a large building at Forty-fourth street and Lexington avenue, known as the “ Industrial Building,” 3-J- miles distant from the general post-office. The city may then be considered as having been divided by a line running through Fourteenth street, and all of the postal business south of that line was retained in the general post-office, and nearly all of the business north of that line was transferred to the new building, popularly known as the “ Industrial Building branch,” officially designated as “ Station FI.” There was thus established, in effect, two general post-offices and two general postal systems where there had been only one before.

The duplication of systems is more clearly illustrated by the duplication of services which accompanied it.

When the claimant entered into the performance of the contract there was handed to its officers a printed book, entitled “ Post-office, New York, N. Y., Transportation Schedule.” The arrivals and departures and hours and places therein set forth indicated the service to be performed. When the new general post-office was established in the Industrial Building there was handed to the claimant another copy of the same printed book, showing the same railway stations and trips, and, with some modifications, the same hours at which trips were to be performed. On the title of this copy of the book was pasted a slip saying “ Industrial Building branch.” In other words, as the requirement was duplicated, so the contractor’s services were substantially doubled. Where it had been required to send out one wagon at a certain hour to make one trip from one place to a railroad depot, it was required to send out two wagons for the same train at substantially the same hour from two places. That is to say, where one wagonload of mail matter went from the general post-office to the Pennsylvania Bailroad depot in Jersey City, two wagons now had to go, the one from the general post-office and the other from the Industrial Building ; and, conversely, when the mail arrived at the Pennsylvania de23ot two wagons had to meet it, the one to carry half of it to the old general post-office and the other to carry the remainder of it to the new general post-office.

Again, there was a post-office station known as “ Station O ” (which had been a subject of litigation in this court, Woolverton's Case, 34 C. Cls. R., 247), used chiefly for the bulky second-class printed matter of publishers, and such matter was received chiefly at Station O. After the establishment of the new post-office in the Industrial Building this Station O, so far as it related to second-class matter, was abandoned, and such matter was received only at the Industrial Buiding. So far it would seem that here was but the substitution of one place for another — that Station O was merely moved from Thirteenth street and Fifth avenue to Forty-fourth street and Lexington avenue. But it appears that the number of trips previously made from Station O daily was 17 and on Sunday 4, while the number of trips made from the Industrial Building was 266 daily and 70 on Sunday. That is to say, “ all first-class matter (letters) previously collected in the district of Station H continued to be reeceived and handled there; massed matter made up by States for the East, North, and West, which had previously been sent to the general post-office for distribution was sent to the Industrial branch to be distributed; the South and West mail was taken there during the period in suit and assorted, and all of the second-class bulky matter of publishers above Fourteenth street, which had previously been received at Station O, was received at the Industrial Building; also third and fourth class matter mailed in uptown stations, which had previoussly come to the general post-office, was sent to the Industrial Building, thereby relieving the general post-office from handling.that matter.”

It is probable that the duplication of wagon trips did not literally double the contractor’s expenses. When the mail matter was divided between the two general post-offices the quantity sent to and from the old general post-office was diminished. The wagon which was previously drawn by two horses may have been drawn by one; where three loads had come or gone at a certain hour from or to a certain place, the mass of that “ dispatch,” as it is called, may have been reduced to two loads. But, nevertheless, it appears that the duplicate service which was exacted from the contractor instantly required more than 80 additional horses, moré than 32 additional wagons, from 33 to 50 additional men, and involved an additional mileage service, estimated by the claimant’s witnesses at 463,000 miles per annum, and conceded by the defendants to be at least 311,939.47. The increased cost to be borne by the contractor is also significantly shown by the fact that the increased expense for the ferriage of wagons which had to cross the North and East rivers in the delivery of mails to the raih'oads was $9,950.22.

The term “ dispatch ” is a technical one in the postal service, and means a mass of matter to be sent to a certain place at a certain time. The term “ trip ” is also technical, and refers to the wagon which will carry the whole or a part of the dispatch.

In previous cases relating to these mail-messenger contracts the court has always been guided by a general principle. -The contract has been considered, like all contracts, as having a definite subject-matter, known to both parties, concerning which they were contracting, but subject to two future unknown fluctuations, in the volume of the business and the amount of the service to be rendered. These fluctuations would be, the one always and the other frequently, adverse to the contractor. The first would be the inevitable growth of the postal business during the ensuing four-year period of the contract; the second, the increased internal machinery of the existing system, such as new stations, more frequent dispatches, etc., consequent to the increased volume of postal business, or necessary, in the judgment of the Department, to remedy defects in the existing system and make it more effective for the public'convenience. Accordingly, it has also been held that the Department might multiply the number of branch post-offices and stations and increase the wagon trips to and from the railroads and between the general post-office and the branch post-óffices and stations, but could not bring into the contract a new subject-matter and compel the contractor to render without compensation a service which he had not contracted to perform.

Thus, where the contractor had agreed to carry the mails from the general post-office in New York to the railroads in Jersey City, the court held that he could not be required to carry them to the Jersey City post-office; and where he had agreed to carry them between the general post-office and the branch post-offices and stations in the city, that he could not be required to carry them to numerous newly devised substations of a different character scattered about the city in apothecaries and cigar shops. In a word, the subject-matter of the contract was held to be the administrative system of the postal service in the city as it existed when the contract was made, with such additions or abbreviations as might be expressly set forth in the contract.

In the present case the bricks and mortar of the changed administrative system are the same — there are the same post-office stations and railroads and steamboats — but out of identical materials an entirely new edifice has been built. In the details there has been no change, but in the aggregate of changes there has been an entire reconstruction of the system; and the new subject of contract brought thereby into the field of operation is far greater than in any case that has heretofore been brought before the court. The court is therefore of the opinion that for this service so rendered the claimant is entitled to recover what the service was reasonably worth. To hold otherwise would be to hold that this carefully prepared contract, with the elaborate specifications thereto annexed, might be reduced to three lines: The undersigned, in consideration of $-, covenants and agrees that during the next four years he will do whatever the Post-Office Department bids him.

There is a second cause of action, founded upon misinformation given to the contractor when the bid was made and the contract executed.

The advertisement for proposals represented that there were two stations on an elevated street railroad in the city which were each served, going and coming, by 62 trips of daily mail-messenger service. In fact, there were just double that number' of stations, and the business existing required just double the alleged number of trips. In the case of Burgwyn (34 C. Cls. R., 848), which was relied upon by the defendants, the decision rested upon the fact that the information which the contractor needed (the soundings of a channel which he was to dredge) was equally within the reach of both parties. In this case the information ivas peculiarly within the possession of the defendants. They knew, and were supposed to know, and must have known, to how many of these elevated-railroad stations the mails were then carried. True it is that the advertisement declared that the bidders must inform themselves, and that no aditional compensation would be allowed for mistakes, and that they must seek the postmaster for explanations. But here was an instance where the bidder might inform himself by reading with care the statement which the Department placed in his hands; and it was not a case which required the bidder to seek the postmaster for explanations, for nothing could be plainer than that which was stated; and it was not a case of mistake, for the matter was understood precisely as it was written. A trivial error, such as saying that there were 30 stations when in fact there were 31, might be called a mistake; but here there was no trivial error, but a plain misrepresentation of 100 per cent.

The purpose of the advertisement was to attract bidders and invite competition; and ivhen the Department, to invite competition, volunteered to give bidders specific information of .existing conditions within its own knowledge, and not within the knowledge of the bidders, it was bound to give them information upon which they could rely. For the court to hold that such information so volunteered might be worthless and, as in this case, delusive, would be to warn all prudent-persons out of the .competitve market and thereby destroy effective competition. The court is of the opinion that the representation made by the Department in this matter of these elevated-railroad stations must be deemed in the nature of a warranty.

There is a third cause of action, namely, that the contractor was compelled to carry the mails from the wagons up the stairs of the elevated roads and deliver them to the mail agents on the trains. It is contended that the service contracted for was wagon service, while this was foot service. The court nevertheless is of the opinion that the provision of 'the contract “ to take the mail from and deliver it into the post-offices, mail stations, and cars ” did not authorize the contractor to deliver the mails in the streets below the elevated roads and outside of the railroad stations, but cast upon him -the burden of conveying them from the streets and of delivering them “ into ” the stations.

The judgment of the court is that the claimant recover for the service rendered in connection with the Industrial Building Branch of the postal service $68,483, and for the duplication of service to the Manhattan Railroad stations, $14,538, amounting in the aggregate to $83,021.  