
    DUVAL, Receiver of the Florida Railway and Navigation Company v. THE UNITED STATES.
    [No. 16346.
    Decided December 2, 1889.]
    
      On the Proofs.
    
    The Post-Office, in mistake of fact, pays ordinary compensation to a “ land-grant road ” for carrying the mails. Before the mistake is discovered the road is sold and passes to another corporation, the present claimant. The defendants now 6et up by way of counter-claim their over-payments to the former corporation.
    
      I.Though the Revised Statutes (§ 191) declare that the halauces stated by the accounting officers shall be conclusive upon the executive branch of the Government they are not conclusive upon the judiciary, and will not preclude the Government from recovering hack an overpayment made in mistake of fact.
    II.The obligation of a railroad arising from the acceptance of a land grant constitutes a privity of contract.
    III. An overpayment made to a railroad for carrying the mails at full rates, upon the supposition of the Postmaster-General that it was not a “ land-grant road," when in fact it was, is a payment in mistake of fact, which may be recovered back.
    IV. For the purpose of rectifying mistakes, the balances certified by the Sixth Auditor for carrying the mails may be regarded as running accounts.
    V.An overpayment made to a former railroad company before the property passed by purchase to the present claimant, and before contract relations existed between the Government and the present claimant, can not be set up by way of counter-claim.
    VI.Estoppel can not ordinarily he set tip against the Government; hut a party purchasing a “ land-grant road" may rely upon settlements between the Postmaster-General and the previous owner ; if no overpay-ments were asserted in the settlements, none can be set up against the purchaser after the purchase.
    
      The Reporters1 statement of the case:
    The following are the facts of the case as found by the court:
    I. Previously to February 29, 1884, the Florida Transit and Peninsular Railroad Company operated a railroad from Waldo to Wildwood, in Florida, constructed in part by land grant made by Congress on condition that the mails should be transported over the road at such price as Congress should by law direct (11 Stat. L., 15), and said company carried the mails over said road under orders of the Postmaster-General, the route having Department designation No. 16011.
    II. Prior to February 29, 1884, the Atlantic, Gulf and West India Transit Company operated a railroad from Fernandina to Cedar Keys, in Florida, constructed in part by land grant made by Congress on condition that the mails should be transported over the road at such price as Congress should by law direct, and said company then carried the mails under route designated by the Post-Office Department as No. 16001.
    III. On the 29th of February, 1884, the following resolution wás adopted by each of the companies therein named, and therefrom the Florida Railway and Navigation Company, a corporation duly organized under the laws of thé State of Florida, of which the claimant was appointed receiver by the Circuit Court of the United States for the northern district of Florida, October 26,1885, owned and operated the roads mentioned in the two preceding findings, and carried the mails over both of said mail routes.
    “Resolved, That the stock, franchises, and all the property of the Florida Transit and Peninsular Railroad Company, the Fernandina and Jacksonville Railroad Company, the Florida Central and Western Railroad Company, aud the Leesburgh and Indian River Railroad Company be, and the same are, merged into the Florida Transit and Peninsular Railroad Company, and consolidated so as to form one company, to be hereafter called and known as the Florida Railway and Navigation Company.”
    IV. Said railroad from Waldo to Wildwood was erroneously treated as a non-land grant railroad by the Post-Office Depart- ' ment, and in each of the quarterly accounts of that route, No. 16011, made by the Sixth Auditor and settled and paid by the Department from May 16,1881, up to June 30,1S85, the full maximum compensation authorized by law to non-land-grant roads was allowed and paid for carrying the mails over said route. On the 25th of July, 1885, the Postmaster-General addressed an official communication to the Secretary of the Interior, inquiring whether said railroad to Wildwood was a land-grant road, and was informed in reply that it was such road under the Act of May 17,1S56 (11 Stat. L., 15). Thereupon the Postmaster-General, on the 14th of August, 1885, directed the Auditor for the Post-Office Department (Sixth Auditor) to modify the orders from May 16, 1881, forward, so as to allow compensation for carrying the mails over said road on route No. 16011 only at the rate authorized to be paid to land-grant roads. Since that time said road has been treated by the Post-Office Department as a land-grant road, as it was in fact, and the claimant’s company has been allowed 80 per cent, of the compensation authorized to be paid to other roads, as provided by the Act of July 12, 1876, ch. 179, § 13, from June 30, 1885 (Supplement to Rev. Stat., p. 226).
    V. The difference between the amount actually paid and the amount which would have been paid under the same act if said road had been treated as a land-grant road, up to February 29, 1884, while operated by the Florida Transit and Peninsular Railroad Company, was $ 1,914.91. From that date to June 30, 1885, such difference was $1,468.75, and that amount was paid to the claimant’s corporation from time to time upon the quarterly accounts of the Sixth Auditor. These two items, amounting to $3,383.66, constitute the over-payments of the counterclaim and set-off pleaded by the defendants.
    VI. In the statement of the account of the Post-Office Department with the claimant’s corporation for carrying' the mails on route 16011 over the road from Waldo to Wildwood for the quarter ending September 30, 1885, said company was allowed the compensation authorized to land-grant road, and there was then set off and deducted therefrom the sum of $1,128.08 as part of said overpayments of $3,383.66 mentioned in the next preceding finding, and in the settlement thereon the claimant’s corporation was not then and has not since been paid the full amount allowed for said mail service by the sum of said set-off and deduction.
    VII. In the statement of the account of the Post-Office Department with the claimant’s corporation for carrying the mails on route Kb. 16001 over the road from Fernandina to Cedar Keys for the quarter ending September 30,1886, said company was allowed the compensation authorized by law, and there was then set off and deducted therefrom the sum of $2,255 58, being the balance of the overpayments of $3,383.66 on route 16011 over the land grant road from Waldo to Wild-wood, as set out in Finding V not previously set off!, as stated in Finding VI, and in the settlement thereon the claimant corporation was not then and has not since been paid the full amount for said mail service by the sum of said set-off and deduction.
    Upon the foregoing finding of facts the court decided, as conclusions of law, on the whole case, including the claimant’s demand and the defendants’ counter-claim and set-off, that the claimant is entitled to recover for services to the extent of $1,914.91, against which the defendants’ plead set-off and counter-claim for overpayments made to the Florida Transit and Peninsular Railroad Company, and that the defendants may set off against the remainder of the claimant’s demand for services the sum of $1,468.75 overpaid to the claimant’s corporation in previous settlements.
    
      
      Mr. A. J. Willard and Mr. 8. M. Lake for the claimant.
    According to the rules of the common law payments made in discharge of contract obligations are final and conclusive between the parties unless fraud or duress intervened to destroy their voluntary character. Actual fraud and misrepresentation amounting to constructive fraud affected such contracts as it did all others. So duress of the person destroyed the voluntary character of such transactions, as it affected in like manner all contracts. There was still another case that was regarded as destroying the voluntary character of payments, and that was where such payments were made to obtain the liberation of goods from detention. Thus, if one holds goods of another upon a claim to a lien upon them, payment may be made to release such goods from such lien, and after such payment the amount paid may be recovered if it had been unlawfully demanded. (Fleetwood v. City of New Yorlc, 2d Sandford’s R., F. Y., 475, and cases there cited; Sehlesinger’s Case, 1 O. Ols. R., 25; Folsom’s Case, 4 id., 366; Ohitty on Contracts, 627-628; 1 Story, Contracts, 541).
    It is evident that neither of the exceptions that have been stated to the general rule of law are applicable to the present case, but that the payments sought to be deducted were at law voluntary payments that could not be recovered back in an action.
    The same principles that controlled the courts of law were recognized and enforced by the courts of equity, as it regarded voluntary contracts and payments. Equity gave relief in the case of mistakes that could not be given at law, and as a payment has the force of a contract this relief was extended to the case of payments. Equity, however, never relieved a party from the consequences of a mistake'in which the opposite party was not in any way implicated. If parties had dealt together upon the mutual assumption of a fact that did not exist it would afford relief, for while it would not compel one to suffer for the mistakes of another it would not permit gain to be made from mistakes in which both parties were implicated. (Hunt v. Bousmainer, 1 Peters, 1; Flliott v. Swartwout, 10 id., 152; Gillespie v. Moore, 2d Johns. Ohan. R., 585; U. 8. Bank v. Daniel, 12 Pet., 32; McKee v. The United States, 12 O. Ols. R., 534, and 97 IT. S., 233; Hedrick & Warden’s Gases, 16 id., 88; McDow v. Brown, 2 S. 0., 95, and cases there cited.)
    
      If in the present case the Government was entitled to relief upon the principles of equity, that relief could only be had in a formal proceeding in equity, for it is clear that no action could lie at law to recover back the money thus paid, assuming it to have been overpaid; and recoupment can not be made except where an action would lie to recover the sum sought to be recouped. But it needs no demonstration to show that the defendant can claim nothing here, upon the principles of equity. In the present case if any mistake was made it was one of law and not of fact, and from such mistakes equity never gives relief. It is incumbent upon the Government to show that there was such an instance of mistake as would be. entitled to relief in equity; when that is shown, the defendant must still fail, as such relief could not be had by means of recoupment.
    The only case in which the Government can maintain an action for recovering on the ground of payment by mistake is that embraced within section 4057, R. S. If this case could be brought within that section the only relief that could be claimed is that indicated by the act itself, namely, an action, and as this act is in derogation of the rules of the common law, the right to bring an action can not be extended by construction to include the right to recoup without an action.
    But the section referred to should be construed in harmony with the principles of the law, and, therefore, as, not embracing mistakes of law, or of fact as to such matters as properly are within the cognizance of the Department, and as to which it is not dependent on the representations of parties dealing with it.
    
      Mr. John C. Chaney (with whom was Mr. Assistant Attorney General Cotton) for the defendants:
    It was expressly provided by the act granting these lands in aid of the construction of this road that the “ Uuited States mail shall be transported over said roads, under the direction of the Post-Office Department, at such price as Congress may, by law, direct.” (Section 5 of the Act May 17, 1856, p. 15, Stat. L.) And by the Act of July 12,187(i (Section 13,19 Stat. L., p. 82), Congress emphasized the intention of the above enactment by fixing the pay for carrying the mails on all land-grant railroads at 80 per cent, of the “ authorized compensation.”
    
      If claimant received more than 80 per cent, of the u authorized compensation” for the road aforesaid for carrying the-United States mails, it was error, and the Postmaster-General ought to have the common privilege of making it right before claimant’s account is closed.
    The Postmaster-General did this, and his action, it seems to me, ought to be satisfactory in view of the facts.
    This right of an executive officer to correct errors at any time in the course of a business transaction with its contractors is a most important executive function; one which, if violated* tends to overihrow the power of the Government to protect itself in its business pursuits.
    The Postmaster-General, haying made out his estimates for the fiscal years of 1881 to 18S5 for the transportation of the mails over the land-grant roads, has seen to it that he runs that part of his Department on the estimates therefor, and has by his action allowed the payments upon this estimate. Of this action claimant complains.
    Under section 4057, Revised. Statutes Gnited States—
    “In all cases where money has been paid out of the funds of the Post-Office Department under the pretense that service has been performed therefor, when in fact such service has not been performed, * * * the Postmaster-General shall cause suit to be brought to recover such wrong payment, with interest thereon.”
    The money was paid to claimant under the pretense of non-land-grant service, when such service was not performed. By this statute, even if the account with and between the parties had been finally closed, suit will lie to recoup the money paid out in excess of that allowed by law for this service. The full “ authorized appropriation ” for a non-land grant road was at first paid out to the petitioner on the pretense of claimant that said road was a non-land-grant road, when in truth and in fact the same was a land-grant road. Such payment was, therefore, wrongfully made, and, if it was not correctly settled, the Postmaster-General would, under said statutes, be bound to compel a true settlement. All directive legislation on this subject points plainly to this theory as the true one, and holds it to be of the highest importance in the performance of executive duties.
    After the enjoyment of life, liberty, and property comes the -the right to correct a mistake, and only that disposition which seeks to get something for nothing objects to it. (McMrath’s •Vase, 12 C. Ols. R., 201.)
    The old theory that “ assumpsit will not lie, but where debt will lie,” is exploded. They often do lie together, but they do not necessarily.
    “ Wherever a person has wrongfully paid money he may have it back again by his action for money had and received.” 2 Burrows, on page 1007, in the case of Moses v. MoFerlan ; and again in the same case, on page 1012: “ This kind of an action, -to recover back money which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies for money ex aequo et bono, which ought to be refunded. It lies for money paid by mistake. In one word the gist of it all is that the party thus receiving money is obliged by the ties of natural justice and equity to refund the money.”
    In Northrop's Executors against Graves (19 Conn., 548), where money is paid by one under mistake of his rights and his duty, .and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered back in an action of indebitatus as-sumpsit.
    
    By claimant’s counsel’s own citation, “ 1 Story on Contracts, 541,” “Where money is paid by mistake, under an ignorance or forgetfulness of facts or under misapprehension of the state -of the contract on which the party pays it, if he be not legally nor morally obliged to pay, it may be recovered back.”
    By reference to section 528 of same volume, we are advised that “ Where an act is done or a contract made under an injurious mistake or ignorance of a material fact [it] is voidable.”
    Section 529, ibid., “ A plain and palpable mistake or ignorance of facts will entitle the mistaken or ignorant party to avoid the contract, and even to recover money paid under such •circumstances.” (Bell v. Gardiner, 4 Man. & Gray, 11; Kelly v. Solari, 9 M. & W., 54; Lucas v. Worsiok, 1 Mood & R., 293; Waite v. Liggett, 8 Cow., 195; Whcedon v. Olds, 20 Wend., 174.)
    To pay claimant the full “authorized compensation” for postal service over its said land-grant road was certainly a plain and palpable mistake.
    It is not a voluntary payment. It is a mistake in which claimant participated.
    
      When the Postmaster-General paid claimant the full “ authorized compensation ” for this service, claimant knew its road was a land-grant road, hut claimant so deported itself as to lead the Postmaster-General into the error that it was a non-land-grant road, and, under this impression, which claimant allowed and secured the Postmaster-General to act, the full “.authorized compensation” of a non-land-grautroad was paid.
    This is not such a case as that of McKee, (12 0. 01s. R., p. 504), 97 U. S. Reports, 233.
    In that case “ the real question was one of agency, and not of mistake.” The accounting officers were there authorized to-make a final settlement, and upon ascertaining the balance due the claimant to pay it, which they did. They afterwards discovered they had erred in the law of the case, and on that final judgment paid more money than they ought; it was, therefore,, held that suit would not lie for its recovery.
    Therefore, if the Postmaster-General would have had his action against the claimant to recover the money in excess of the 80 per cent, of the “ authorized compensation,” were it still in claimant’s hands, by logical sequence, he hud the right to readjust and correct the account as to such excess. Having done nothing more than his duty and right, claimant can take nothing by his action herein. Defendant is good for a judgment against this claim and in favor of the counter-claim and set-off.
    There remains one other question for our notice, viz, is claimant responsible to the Government for so much of said “ excess ” as was paid by the Florida Transit and Peninsular Railroad Company prior to the “ consolidation?”
    The “ consolidation” dates from February 28 and 29, 1884,. and allmoneys paid for postal service after that is acknowledged by the claimant road, although the “ consolidation” was not noted by the Postmaster-General until April 1, 1885.
    There has been no proof offered as to how much of this <£ excess” was paid the Florida Transit and Peninsular road, but that would be a matter of simple mathematical investigation.
    The terms of the transfer would be important, but no proof has been offered on this point further than that presented in the “ resolution of consolidation.” That resolution shows that these other roads all “ merged into the Florida Transit and Peninsular Railroad Company, and consolidated so as to form one company.”
    
      We are, therefore, still treating with the road which treated with the Government in this mail service, which road itself received the disputed “ excess,” and which road was made to surrender the 20 per cent, excess, the $3,383.66.
    The *“ resolution of consolidation” that said road is “to be hereafter called and known as the Florida Railway and Navigation Company,” is not to be considered a sale and transfer.
    It is, in fact, the same road, though known by a different name. A name is of no consequence.
    There has been no sale, no transfer of property rights. The road is the Florida Transit and Peninsular Railroad Company, into which the other roads “ merged * * * and consolidated so as to form one company.”
    This road has enjoyed all the benefits of the Government mail-service contracts named, and is therefore subject to the burdens of that enjoyment. The change of name involved no change of rights whatever; hence the claimant must respond to the Postmaster-General’s demand.
   Richardson, Oh. J.,

delivered the opinion of the court.

The questions of law arising upon the findings of fact in this case involve the right of set;off' and counter-claim by the defendants for money erroneously paid out by public officers in settlements of accounts, and also the conclusiveness of the balances stated by the accounting officer of the Treasury.

Mail route No. 16011 extends from Waldo to Wildwood in Florida, over a railroad aided by grant of lands under the act of May 17, 1856, ch. 31 (11 Stat. L., 15), subject to the provision that the United States mail shall be transported over said road at such prices as Congress may by law direct.

Congress subsequently in 1876 passed an act, one section of which is as follows:

“That railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct, shall receive only eighty per centum of the compensation authorized by this act!” (1876, July 12, ch. 179, § 13, Supplement to Rev. Stat., p. 226.)

The road was operated and the mails were carried over that route from May 16,1881, to February 29, 1884, by the Florida Transit and Peninsular Railroad Company, and from the latter date to the time of bringing this action by the Florida Railway and Navigation Company, of which the claimant is Receiver.

The Post-Office Department, apparently by oversight, treated the road as a non-land-grant railroad and paid for carrying the mails over it the full maximum authorized by law to such roads up to the end of the second quarter of the year 1885, without making the deduction of 20 per cent, required by the act of 1876.

On the 25th of July, 1885, the Postmaster-General addressed an official communication to the Secretary of the Interior, making inquiry as to whether the road was a land-grant road. Upon receiving a reply that it was a road aided by Congress with a land grant under the Act of 1856 (11 Stat. L., 15), the Postmaster-General, on the 14th of August, directed the Auditor for the Post-Office Department to modify the former orders from the beginning so as to allow only 80 per cent, of the maximum compensation authorized to be paid railroad companies generally, thus for the first time treating the road as one of the land-grant roads affected by the statute of 1876.

Since then the claimant’s corporation has been allowed the compensation due for carrying mails on such land-grant roads, without controversy.

The Auditor re-opened and re-examined all previous quarterly accounts and settlements and found that by not regarding the Act of 1876 as to land-grant roads there had been overpaid for carrying the mails over this road the sum of $3,383.60. In stating the quarterly account of the claimant company for carrying the mails over the road, September 30, 1885, after makiug the proper allowance for compensation, he deducted $1,128.68 of said sum thus overpaid, and in stating the quarterly account of the claimant company for carrying the mails over another route he deducted the balance of said sum overpaid, $2,255.58. It is for compensation tor services withheld by the defendants on account of these deductions that this action is brought. The defendants plead set-off and counterclaim for the amount of those overpayments, and that is the only issue in the case.

The claimant insists that the overpayments having been made in settlement of balances stated and certified by an accounting officer (the Sixth Auditor) are binding and conclu-give on the defendants and can not be recovered back either by action or counter-claim, relying upon the following section ■of the Revised Statutes:

“ Sec. 191. The balances which may from time to time be stated by the Auditor and certified to the heads of Departments by tlie Commissioner of Customs or the Comptrollers of the Treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of Departments, but shall be conclusive upon the executive branch of the Government, and be subject to revision only by Congress or the proper courts. . The head of the proper Department, before signing a warrant for any balance certified to him by a Comptroller, may, however, submit to such Comptroller any facts in his judgment affecting the correctness of such balance, but the decision of the Comptroller thereon shall be final and conclusive, as hereinbefore provided.”

This section is a reproduction of the Act of March 30,1868, ch. 256, § 1 (15 Stat. L., 54). Before the passage of that act the heads of Departments and even the President, as superior officers, claimed the right to direct the accounting officers in the matter of accounting and to change balances found by them when acting on their own judgment, before warrants were •drawn for payment, and this claim of right was frequently resisted by the accounting officers. The question involved was repeatedly reviewed in Opinions of the Attorneys-General (1 Opin., 624; 2 Opin., 508, 544; 5 Opin., 630), and was never finally settled until the enactment of the provision of section 191 of the Revised Statutes. (See a review of the subject in McKee’s Case, 12 C. Cls. R., 555.)

Since then, for the purpose of drawing warrants and making payments, the balances stated by the accounting officers are final and conclusive upon the executive branch of the Government. But by the very terms of the act they are not conclusive upon Congress or the proper courts. The former may deal with them in its legislative capacity as it deems best, and the latter are not bound by them when judicially deciding upon the controversies involved in the transaction to which they relate.

■ Whether or not, upon the direction of the Postmaster-General, changing his previous orders, long since executed, the Sixth Auditor was justified, as a matter of accounting, in opening accounts settled and paid, and in charging to the claimant’s corporation overpayments made upon such prior adjustments, instead of leaving the United States to their remedy by action against the company, is not the question here to be determined.

The defendants have pleaded the same overpayments in set-off and counter-claim to the claimant’s demand, and whether or not they are entitled to judgments depends upon the principles of law applicable to the question of recovery back of public money paid by public officers in mistake of fact or law, and not merely upon the action of the Sixth Auditor. (Longwill's Case, 17 C. Cls. R., 288; Mississippi Central Railroad Case, 23 C. Cls. R., 27, and cases cited.)

On the 29th of February, 1884, the claimant’s corporation became the owner and operator of a land-grant railroad under the Act of 1856. It was thereby charged with the obligation running with the road to carry the mails at 80 per cent, of the amount authorized to be paid to other railroads for such service. This obligation created a privity of contract and agreement between the parties, the United States on the one side and the operating company on the other. The Postmaster-General was bound to pay that reduced allowance, and was prohibited bylaw from paying any more. Whatever was paid beyond that sum was unauthorized and illegal.

That the payments were made in mistake of fact, by oversight or neglect of some officers of the Post-Office Department, and not upon an error of law, sufficiently appears from the finding. As soon as the Postmaster-General learned by inquiry from the Secretary of the Interior that the road had been aided by grants of land under the act of 1856, a fact which must have been known to the claimant corporation, and which, not being apparent in the statutes, seems very naturally to have escaped the knowledge of the Postmaster-General, he modified his previous orders.

This presents a clear case of right to recover back the over-payments made to the claimant’s corporation in mistake of fact and in violation of law by a public officer, according to the numerous decisions on that subject. The contract relations between the parties still continue and have continued consecutively since the first overpayment. It is true that accounts have been stated by the accounting officer and payments made quarterly, but according to the methods of business of the Department such payments are made by drafts of the Postmaster-General (McKnight’s Case, 13 C. Cls. R., 303), but no receipts in full are given and no settlements are agreed upon as final, as in cases where parties come together and settle and discharge disputed claims on one side and the other. (Shipman’s Case, 18 C. Cls. R., 147, and cases there cited.)

For the purpose of rectifying mistakes we are of opinion that the items of the several statements upon which the Sixth Auditor certifies balances due for carrying the mails ordinarily* and in the absence of special circumstances, may be regarded as running accounts, at least while the parties continue the same dealings between themselves; and that money paid in violation of law upon balances certified by the accounting officers generally may be recovered back by counter-claim or otherwise where no peculiar circumstances appear to make such recovery inequitable and unjust. (Steele’s Case, 113 U. S. R., 128, and 19 C. Cls. R., 181; Burchard’s Case, 125 U. S. R., 176; McElrath’s Case, 102 U. S. R., 426, and 12 C. Cls. R., 312; Barnes v. District of Columbia, 22 C. Cls. R., 366, and cases there cited; Roche v. District of Columbia, 18 C. Cls. R., 217.

From these views it follows that the overpayments made to the claimant’s corporation, the amount of which is held by defendants in set-off to money earned for carrying the mails in the same continuous service, may be legally applied as a counter-claim and set-off in this action for money thus earned by the claimant’s corporation.

As to the overpayments made to the Florida Transit and Peninsular Railway Company before the claimant corporation became the owner of the road and before it had any contract relations with the defendants, a different case is presented.

Five railroad companies, on the 29th of February, 1884, by separate votes merged the stock, franchises, and all their property into the Florida Transit and Peninsular Railroad Company, and consolidated so as to form one company, to be called the “Florida Railway and navigation Company,” a corporation under the laws of Florida, which is the claimant’s corporation.

In the absence of the charter or reference to any law defining the power, rights, and obligations of the latter corporation we must assume that it acquired, by purchase, the stock, franchises, and property of the five companies named, including the Florida Transit and Peninsular Railroad Company, and that it made settlements with each of the companies and paid for the property acquired upon terms based upon the values at that time. It does not appear that the claimant’s corporation agreed to assume and pay the debts of the Florida Transit and Peninsular Railroad Company. It may be presumed that each of the consolidated companies was paid for its assets in full, and that each was to liquidate its own debts and settle with-its own separate stockholders.

Wh en these overpayments were made there was no privity of contract between the present claimant’s corporation and the defendants. In making the purchase and completing the settlements among the several corporations, the' purchasing corporation and those comjianies which united with the claim•ant’s corporation in turning over their assets to the new corporation bad a right to rely upon the settlements previously made between the Postmaster-General and one of the companies, no overpayments having at that time been claimed by the Postmaster-General and none of the jiarties having any reason to suppose the settlements were not correct and final.

Although as a general principle it is sometimes said that es-toppels do not run against the Government, there are many exceptions, and we think this is one of them. (Harton's Case, 21 C. Cls. R., 451; Branson v. Wirth, 17 Wallace, 43; Roberts’s Case, 10 Fed. Rep., 541; Bigelow on Estoppels, 2d ed., p. 246.)

In business matters the Government, acting only by public •officers, its agents, is bound by the admissions and representations of such officers in relation to transactions within the line of their duty under the principles of the law of agency as applied to individuals. In the numerous actions against the United States tried in this court we constantly hold the Government concluded or estopped by such acts of its officers as form part of the res gestee. It was said by Chief-Justice Waite, speaking for the Supreme Court, in Cooke v. United States (91 U. S. R., 398): “ Generally in respect to all the commercial business of the Government if an officer specially charged with the performance of any duty and authorized to represent the Government in that behalf neglects that duty and loss ensues, the Government must bear the consequences of his neglect.”

In our opinion the overpayment made to the Florida Transit ■and Peninsular Railway Company before the claimant’s corporation operated the land-grant road and when there existed no contract relations between the latter and the defendants can not be set off against the money since earned by the claimant’s corporation, and to that extent the counter-claim should be dismissed. The claimant is therefore entitled to judgment for that amount withheld, $1,914.91.  