
    FRANK P. WHITSELL v. THE UNITED STATES.
    [No. 20764.
    Decided December 19, 1898.]
    
      On the Proofs.
    
    The claimant enters into a contract to carry the mails from the post-office in Centerville, Iowa, to the railroad station. Subsequently without any change in the contract, but with the knowledge of the' postmaster, he performs additional service, and after the expiration of the contract demands additional compensation therefor.
    I.Notice to a postmaster is not notice to the Post-Office Department; nor has a postmaster authority to make contracts in regard to the mail messenger service or to direct it.
    II.The reports of a post-office of a mail carrier’s service performed are not sufficient to charge the Department, or the proper officers ' thereof, with notice of extra service.
    III. Where a contractor renders extra service to the Government during a period of more than six years without notice that he regards it as extra, and without demanding extra compensation, he will be "held to have waived his right to it.
    IV. Where a contractor throughout a term of service maintains silence in regard to it, he will be held to have construed his own action and can not be heard to gainsay or deny it.
    
      The Reporter’s statement of the case;
    The facts appear sufficiently in the opinion of the court.
    
      Mr. Türnest Holtzman and Mr. W.-H. Robeson for the claimant:
    We respectfully submit that the facts proven and those conceded by the defendant establish a clear case of an implied contract on the part of the defendant to pay claimant what his services are reasonably worth. The fact that he rendered the service is both conceded by the defendant and proven by the testimony of reliable and disinterested witnesses, and it is also proven that he did so at the special instance and request of the.defendant’s agent, the then postmaster at Cen-terville. The fact that he rendered the service as claimed was duly reported to the Post-Office Department at the end of each quarter by the postmaster at Centerville, as required by section 740 of the Postal Laws and Eegulations, and the defendant, after being so informed, accepted the service and derived the benefit thereof, and now only refuses to pay for the same upon the grounds that they were voluntarily performed and were unauthorized.
    Jn this connection we desire to invite the attention of your honors to what a few of the best authorities have to say upon the subject of implied contracts.
    Mr. Bishop, in his work on “ Contracts,” section 217, says:
    “Any benefit, of a sort commonly the subject of pecuniary compensation, which one, not intending it as a gift, confers on another who accepts, is, in the absence of any agreement in fact, an adequate foundation for the laws created promise to render back its value.”
    The American and English Encyclopedia of Law, vol. 3, pages 860 and 861, first edition, says:
    “Whenever work is done, services rendered, goods delivered, or money paid by one person at the request of another, provided such request be not made and acceded to as a gratuitous favor, a contract is implied to pay the value.”
    And in the notes, on page 861, says:
    “If A, with B’s knowledge, but without any express request, does work for B such as people as a rule expect to be paid for, if B accepts the work or its result, and if there are no special circumstances that A meant to do the work for nothing or that B honestly believed that such was his intention, there is no difficulty in inferring a promise by B to pay what A’s labor is worth. The doing of the work with B’s knowledge is the proposal of a contract, and B’s conduct is the acceptance.” Citing Day v. Oaton (119 Mass., 513); Holmes v. Board of Trade (18 C. L. J., 235). See The United States, Appellant, v. Andrew J. Wall (20 Wall., 517); The Western Union Railroad Go. v. The United States (101 U. S. B., 543); Carroll v. United States (20 O. Cls. B., 426). See also Broolcs v. United States (1C. Cls. B., 180); and Central Pacific Railroad v. United States (28 0. Cls. • B., 427).
    
      Mr. William H. Button (with whom was Mr. Assistant Attorney-General Pradt) for the defendants:
    The law is so elementary that it is unnecessary to refer the court to more than one case, especially as such case was decided by this court, and is very much in point. The case referred to is Boston v. The District of Columbia (19 C. Cls. B., p. 31).
    In the eyes of the law this service was voluntary, for in the first place the claimant did not expect to be remunerated therefor. The defendants claim that the evidence establishes the fact that be did not so expect. Furthermore, it was voluntary, even if be did expect to receive compensation therefor, and the defendants did not expect to pay for it, unless the circumstances were such that the defendants should have known that the claimant so expected. That they did know that the claimant so expected can not be claimed. That they should have known that he so expected it is thought is not established by the circumstances of this case, on account of the peculiar character of -the reports of the service above referred to and from the fact that those who knew that he was performing this service had no authority to contract for such service. From their actions or from their conduct no implied contract can arise. (Pitcher v. The United States, 10. Cls. R., 11.)
    This principle has been recognized in all the cases in this court and in the Supreme Court, in which it has been held that an implied contract has arisen.
    The fact that the goods must be appropriated or the money must be taken or the services must be accepted by an authoritative agent of the Government is in each case emphasized.
    This principle is consistent with the holdings in all the cases of implied contract which this court has enforced. It is shown that the only agent who had the authority to make this contract with the- claimant was the Second Assistant Postmaster-General, and from the case it fully appears that he did not make such contract and knew nothing about it, and could not be charged with any knowledge upon the subject.
    Second. Even if this service was not voluntary and was performed with the expectation on the part of the claimant to be compensated therefor, and under such circumstances that the defendants must be deemed to have known of such expectation, the statutes in regard to mail contracts are such that no compensation can be recovered. It is provided by the Revised Statutes, section 3949, that all contracts for carrying the mails shall be awarded to the lowest bidder and shall not be made except after advertising. This provision is not held to be merely directory, but it is mandatory. (Henderson v. The United States, 4 0. Cls. R., 81; JDanolds v. The United States, 5 0. Cls. R., 70; Lender v. The United States, 7 0. Cls. R., 530; Iron Company v. The United States, 118 U. S. R., 42.)
    The protection of the principle laid down in the case of Ciarle v. The United States (95 U. S. R., 539) can not be invoked. The doctrine suggested in that case is that although such requirements may be mandatory, yet they apply only to exec-utory contracts, and that when the contract has been wholly or partially performed on one side, although all formality may not have been observed, yet the recovery may be had upon a quantum meruit. Such principle can not be invoked, for the reason that an implied contract can not arise in contravention of an express statutory provision. The Eevised Statutes provide, section 3960, that when any such additional service is ordered, the sum to be allowed therefor shall be expressed in the order and entered upon the books of the Department, and no compensation shall be paid before the order. And, further, section 3959 provides that no person shall receive any pay until he has executed his contract according to law and the regulations of the Department. The provisions of these sections are specific, and can not be disregarded.
    Section 1765, Eevised Statutes, is a bar to the claimant’s demand unless it can be successfully established that he is not an officer whose pay is fixed by law or regulations.
    In Mullett’s Administratrix v. The United States (150 U. S. E., 566) claimant was employed to render services which, if not strictly appertaining to his office or position, were of the same general character and to be performed at the same place. No new-office was created; no express promise of payment was made; no act of Congress in terms gave authority to promise payment, or made any provision or appropriation for compensation. The case is one simply of a claim for compensation for extra services, when no express authority therefor can be found in any act of Congress, and it was held that the claimant could not recover anything. He sought to recover for extra services for planning certain Government buildings while he was Supervising Architect of the Treasury, such planning not being part of his regular duties.
    In Perry v. The United States (28 C.- Cls. E., 495) a member of the Eock Creek Park Commission endeavored to recover extra compensation for legal services rendered said commission. It was held that he could not recover for such services. See also Gole v. The United States (28 C. Cls. E., 510).
    If it seems that this claim is not within the prohibition of section 1765, it seems surely to come within the prohibition of section 1764, as the services rendered were extra services and in no wise expressly authorized by law.
   Peelle, J.,

delivered the opinion of the court:

This action is to recover compensation for mail-messenger service for carrying the mails between the post-office at Cen-terville and the depot at Relay, in Appanoose County, Iowa, from August 15,1889, to August 26, 1895.

The claimant was designated by the Second Assistant Postmaster-General as a mail messenger to carry the mails, as often as required, on mail-messenger route No. 92040, between the post-office at Centerville and the Wabash depot at that place, for $375 per annum, payable quarterly, from February 12, 1885.

At that time the mails were being transported to and from the Wabash depot, among others, by the Wabash, St. Louis and Pacific Railway, and also by the Albia and Centerville Railway, which latter road was then, and thereafter until August, 1889, operated as part of the Wabash system.

But prior to the month of August, 1889, the Albia and Cen-terville Railway ceased to be operated by the Wabash, St. Louis and Pacific Railway, and they erected a depot of their own at Relay, about 1 mile from the limits of Centerville, in an opposite direction from the post-office,' though nearer thereto, than was the Wabash depot. *

Thereafter, beginning August 15,1889, the claimant, without other authority from the Post-Office Department therefor, but with the knowledge of the postmaster at Centerville, in addition to the designated service aforesaid, began to carry the mails to and from the depot at Relay and the post-office at Centerville, and continued so to do without protest and without expectation of payment therefor, other than the $375 per annum aforesaid, until August 26,1895.

The defendants had no notice, other than by the postmaster at Centerville, that the service was being performed. Nor did the claimant ever present to the defendants a claim for the service so rendered by him, or otherwise demand compensation therefor, until after the service had been fully performed..

The claimant contends that he is entitled to recover for the value of the service so rendered as upon an implied contract, which he contends arose by reason of the knowledge of the postmaster at Centerville that the service was being performed and his reports to the Department, in relation thereto, and the defendants receiving the benefits of the service.

The defendants contend that no implied contract can arise by reason of the knowledge or action of the postmaster; and furthermore, that the services having been performed without authority from the Post-Office Department and without expectation of payment therefor, no recovery can be had, and certainly not for the service performed more than six years prior to the filing of the petition therein.

While the claimant may have performed the service under the belief that it was not his duty to do so by reason of his prior designation as a mail messenger to carry the mails to and from the Wabash depot, still he did so without protest or objection, and without authority from or notice to the Post-Office Department in respect thereof, until after the completion of the service.

Notice to the postmaster that the service was being performed can not be imputed as notice to the Post-Office Department, for the reason that a postmaster has no power or authority to contract in respect of mail-messenger service. Nor is he the agent of the Government to direct such service, as he is, within the limits of their duties, of letter carriers, who are his subordinates. {Pitcher's Case, 1 O. Ols. B., 7,11 ; Ford’s Case, 17 0. Cls. B., 60, 76; Legare’s *Case, 24 O. Cls. B., 513, 516; 32 C. Cls. B., 417.)

It follows that the Government can only be bound by the acts of its authorized agents, and, too, within the limits of their respective duties. {Smith’s Case, 33 O. Cls. B., 295,309; Roberts et al., Trustees, v. The United States, 92 U. S. B., 41, 48.)

Hence, it is the duty of persons dealing with public officers to inquire as to their power and authority to bind the Government. {Sume v. United States, 132 U. S. B., 406.)

It is true that the Government received the benefit of the service rendered by the claimant, and if the same had been performed under circumstances indicating a purpose on the part of the claimant to seek compensation therefor the court-might be authorized to imply a contract therefor and permit a recovery for the quantum meruit.

Section 740 of the Postal Laws and Begulations require postmasters at the end of each quarter to make to the Second Assistant Postmaster-General reports of the mail-messenger service at their respective post-offices, including in such reports “all temporary service,” and “giving legibly the name of the post-office, number of route, name of mail messenger, number of trips a week required, annual pay, distance, name of railroad or steamboat line between wkicb and tbe post-office tbe route is established, and tbe dates, inclusive, on and between wbicb tbe service is performed,” etc. Tbe reports made thereunder prior to October 1,1891, are not before tbe court, and we are not advised as to the contents thereof, other than may be presumed from tbe requirement of tbe regulation.

Tbe reports, however, beginning with October 1,1891, are before tbe court, and while they show service performed between tbe post-office and tbe several trains entering Center-ville, with varying distances therefrom, we think such reports insufficient to charge tbe Department, or tbe proper officer thereof, with notice of such service.

Tbe service was begun by tbe claimant without tbe authority or knowledge of tbe Department, and even if tbe contents of tbe reports thereafter made were sufficient to charge tbe Department with notice that tbe service was being performed and that tbe claimant thereby bad acquired a right to compensation therefor, be must be held to have waived such right by reason of not having demanded payment therefor until after tbe service, covering a period of more than six years, bad been fully performed; and such is tbe effect of the decision in tbe Eastern Railroad Company v. United States (129 U. S. R., 391) affirming tbe judgment of this court (20 C. Ols. R., 23).

Had notice been given tbe Department, it would doubtless have terminated the service and readvertised for sealed proposals for its performance. At all events, bad notice been given tbe responsibility thereafter would have rested with tbe Department.

It is not improbable that tbe claimant’s refraining from giving notice that be was performing tbe service and from demanding payment therefor until after its completion was through fear of being subjected, not only .to a readvertisement for letting tbe service, but to a reduction in bis pay for carrying tbe mails to and from tbe Wabasli depot.

By his silence, therefore, be construed bis own action, and thereby made known bis real intention, and be can not now be beard to gainsay or deny it. Gregg v. Von Phul (1 Wall., 274, 281) and other authorities cited in AVoorWs Case (8 C. Ols. R., 364, 369).

In tbe Central Paeifie Pailroad Company’s Case (28 C. Cls. R.., 427, 438), concerning tbe conveyance of inspectors of tbe Post-Office Department in connection with tbe transportation of tbe mails, where tbe regulation required railroad companies “to convey free of charge all duly accredited special agents of tbe Department,” and where no notice bad been given of tbe claimants’ intention to charge therefor, this court denied tbe right of recovery on tbe ground that if tbe claimants bad intended to claim compensation therefor notice of such intention should have been given with reasonable diligence.

On appeal that case was affirmed (164 U. S. R., 93, 97), and in reference thereto tbe court said:

“The company was informed by the contents of tbe commission that tbe right of transportation was claimed, and when it was accorded pursuant to the claim and no demand made for payment, at tbe time, or for years thereafter, until the commencement of this suit, such acquiescence amounts to a clear and conclusive waiver on the part of the company of any right tn now demand such payment.”

In tbe Goode Case (25 C. Cls. R., 261), where a paymaster’s yeoman in tbe Navy was appointed with the understanding that be should render service as recorder in tbe Coast Survey without additional compensation, tbe court, in substance, held that where an officer voluntarily renders additional service without making any demand for extra compensation and upon tbe implied condition that be will not charge for it, be is estopped from doing so. This was upon tbe theory that tbe claimant in that case was not compelled to render tbe service to tbe Survey, and that if be did do so without objection be was estopped by bis own act from recovering extra compensation therefor.

In tbe case of the Evansville and Indianapolis Railroad Company (32 C. Cls. B., 555, 565), where tbe company contracted to carry tbe mails at' a fixed compensation, subject to future orders, and thereafter many miles of additional railroad are constructed and tbe service extended over it and the compensation therefor fixed at a higher rate, based on tbe weight of mail over tbe whole line, and no demand made for tbe higher rate being extended to tbe old portion, this court said:

“Tbe failure of the company to protest because tbe order of readjustment, after tbe weighing as aforesaid, was not made to apply to tbe compensation between Evansville and Washington, and-no demand having been made therefor, it must be held that the company not only assented to the rate as originally ñxed for carrying the mails between Evansville and Washington, but assented to a continuance of such rate during the term of its contract, thereby construing its own action as favorable to the rate fixed.”

From the authorities cited it must be apparent that by reason of the claimant’s silence, when he should have-spoken, he can not now be heard to speak in denial of his action.

The petition is therefore dismissed.  