
    AMANDA M. COSGROVE, ADMX., v. THE UNITED STATES.
    [No 15736.
    Decided June 15, 1896.]
    
      On the Proofs.
    
    A Post-Office advertisement describes the length of the route as 442 miles.
    The distance is not stated in the contract, but the route is otherwise described as in the advertisement. This is the length of the usually traveled route, the only route for vehicles. Roswell is a post-office on this route, though not named in the advertisement or contract. There is an old abandoned bridlepath impracticable for mail transportation purposes, not going through Roswell, which would reduce the distance to 367 miles. After the contractor has been carrying the mails several months via Roswell the Postmaster-General orders that Roswell be embraced in the contractor’s route, “ distance and pay hereafter to he determined.” The contractor is subsequently allowed increased pay upon the assumption that he contracted to carry the mail upon a route of 367 miles and was compelled to carry it upon a route of 442 miles. The claimant seeks to recover $1,823 for a month’s service, which is conceded. The defendants seek to recover $33,921 for overpayments made to the contractor, which counterclaim is the subject of controversy in the case.
    I. It is the duty of the Postmaster-General, before making a contractfor carrying the mails, to advertise for proposals describing the route and to award the contract “ to the lowest bidder tendering sufficient guarantees for faithful performance.” (Revised Statutes, §5 3941, 3949.) And such contracts can not be changed except in the manner provided by § § 3957,3958, 3959.
    
      II. The Postmaster-Gen eral is authorized to allow a contractor compensation for additional service, hut before it can he paid it must, appear that the sum to he paid is “expressed in the order and entered, upon the hooks of the Department,” and that service additional to that required hy the contract has been performed. (§ 3960.)
    III. Where the advertisement describes the route as 412 miles and the contractor's proposals specify a post-office on that 442-mile route and there is no other practicable route, the Postmaster-General can not assumo that an old abandoned route of 367 miles was intended by the contract and, by a subsequent order, direct service upon / the 4-I2-mile route and allow additional compensation for increased distance.
    IY. Where money was paid to a mail transportation contractor under an order for an assumed increase in distance, when in fact there was none; and when ihe route specified in the order and the route intended by the contract were identical, the money was illegally paid and may be recovered back.
    Y. Where a mail transportation contractor brings a suit in this court to recover one month’s pay conceded to bo due him, the United States can maintain a counterclaim to recover back overpayments made to him upon the same contract.
    
      The Reporters’ statement of tbe case:
    The following are the facts of the case as found by the court:
    I. November 1,1877, the Postmaster-G-eneral advertised for proposals “for conveying the mails of the United States” in certain States and Territories from July 1, 1878, to June 30, 1882, among which was route No. 39109 in the Territory of New Mexico, as follows:
    “39109. From Las Vegas, by Vallinos Springs, Anton Chico, Santa Rosa, Puerto de Luna, Fort Sumner, Fort Stanton, South Fork, Tula Rosa, and San Augustine, to Las Cruces, 442J miles and back, three times a week. Leave Las Vegas Monday, Wednesday, and Friday at 6 a. m,; arrive at Mesilla sixth day by 6 p. m. Leave Mesilla Monday, Wednesday, and Friday at 6 a.m.; arrive at Las Vegas sixth day by 6 p. m. Present cost of service, $27,000 per annum. Bond required with bid, $30 000; check, $1,350.”
    Along with said advertisement there were instructions to bidders, forms for proposals, bonds, etc., and among other things bidders were required to state in their proposals the following:
    “ This proposal is made i with full knowledge of the distance of the route, the weight of the mail to he carried, and all other par
      
      ticulars in reference to the roxite and service,’ and also after careful examination of the laws and instructions attached to advertisement of mail service.”
    
    II. Pursuant to tbe advertisement above stated tire claimant’s decedent, Cornelius Cosgrove, made his proposal or bid in accordance therewith, wherein he proposed to convey the mails of the United States over the route designated for the sum of $14,900 per annum for the period stated.
    And being the lowest bidder, his bid was accepted, and on the 15th of March, 1878, he entered into a written contract with the United States to carry the mails on mail route No. 39109, as follows:
    
      u United States oe Aherica,
    “ Santa Fe, Santa Fe Go., Éew Mex.:
    
    “ This article of contract, made the 15th day of March, eighteen hundred and seventy-eight, between the United States of America (acting in this behalf by the Postmaster-General) and C. Cosgrove, contractor, and James L. Johnson, of Santa Fe, New Mexico, and Thomas B. Catron, of Santa Fe, New Mexico, as his sureties.
    “Witnesseth, that whereas C. Cosgrove has been accepted, according to law, as contractor for transporting the mail on route No. 39109, from Las Yegas, N. Mex., by Gallinos Springs, ■ Anton Chico, Santa Eosa, Puerto de Luna, Fort Sumner, Fort Stanton, South Fork, Tula Eosa, and San Augustine, to Las Cruces and back, three times a week, by a schedule satisfactory to the Department, at fourteen thousand nine hundred dollars per year, for and during the term beginning July first, eighteen hundred and seventy-eight, and ending June thirtieth, eighteen hundred and eighty-two: Now, therefore, the said contractor and his sureties do, jointly and severally, undertake, covenant, and agree with the United States of America, and do bind themselves—
    “1st. To carry said mail with certainty, celerity, and security, using therefor such means as may be necessary to transport the whole of said mail, whatever may be its size, weight, or increase, during the term of this contract, and within the time fixed in the annexed schedule of departures and arrivals; and so to carry until said schedule is altered by the authority of the Postmaster-General of the United States, as hereinafter provided, and then to carry according to Such altered schedule; and in all cases to carry said mail in preference to passengers and freight, and to their entire exclusion if its weight, bulk, or safety shall so require. And that they will carry the mail, upon demand, by any conveyance which said contractor regularly runs, or is concerned in running, on tbe route, beyond tbe number of trips above specified, in tbe same manner and subject to tbe same regulations as are herein provided touching regular trips.
    “2d. To carry the mail in a safe and secure manner, free from wet or other injury, under a sufficient oilcloth or bear skin if carried on a horse, and in a boot under the driver’s seat if carried in a coach or other vehicle.
    “3d. To take the mail and every part thereof from, and deliver it and every part thereof at, each post-office on the route, or that may hereafter be established on the route (or on any route that may hereafter be established and to which this contract may be extended as hereinafter provided), and into the post-office at each end of the route, and into the post-office, if one is there kept, at the place at which the carrier stops for the night, and if no post-office is there kept, to lock it up in some secure place at the risk of the contractor.
    “ They also undertake, covenant, and agree with the United States of America, and do bind themselves, jointly and severally, as aforesaid, to be accountable and answerable in damages for the person to whom the said contractor shall commit the care and transportation of the mail, and his careful and faithful performance of the obligations assumed herein and those imposed bylaw, not to commit the care or transportation of the mail to any person under sixteen years of age; to discharge any carrier of said mail whenever required so to do by the Postmaster-General; not to transmit by themselves, or either of them, or either of their agents, or be concerned in transmitting commercial intelligence more rapidly than by mail; not to carry otherwise than in the mail, letters, packets, or newspapers which should go by mail, or convey or transport any person engaged in carrying letters, packets, or newspapers which should go by mail; to carry post-office blanks, mail locks and bags, and other postal supplies, and also the special agents of the Department on the exhibition of their credentials, if a coach or other suitable conveyance is used, without additional charge; to collect quarterly, if required by the Postmaster-General, of postmasters on the route the balances due from them to the United States on their quarterly returns, and faithfully to render an account thereof to the Postmaster-Generalinthe settlement of the quarterly accounts of said contractor, and to pay over to the Auditor of the Treasury for the Post-Office Department, on the order of the Postmaster-General, all balances remaining in his hands.
    “ For which services, Avhen performed, the said G. Cosgrove,' contractor, is to be paid by the United States the sum of fourteen thousand nine hundred dollars a year, to wit: Quarterly, in the months of November, February, May, and August, through the postmasters on the route or otherwise, at the option of tbe Postmaster-General, said pay to be subject, however, to be reduced or discontinued by tbe Postmaster-General,, as hereinafter stipulated, or to be suspended in case of delinquency.
    “ It is hereby stipulated and agreed by the said contractor’ and his sureties that the Postmaster-General may discontinue or extend this contract, change the schedule and termini of the route, and alter, decrease, or extend the service, in accordance-with law, he allowing a pro rata increase of compensation for any additional service thereby required, or for increased speed if the employment of additional stock or carriers is rendered necessary; and in case of decrease, curtailment, or discontinuance of service, as a full indemnity to said contractor, one month’s extra pay on the amount of service dispensed with and a pro rata compensation for the service retained: Provided, however, That in case of increased expedition the contractor-may, upon timely notice, relinquish the contract.”
    III. June 14,1878, after the contract referred to had been entered into, but beforeit went into effect, the Second Assistant Postmaster-General addressed to the claimant a circular letter,. of which the following is a copy:
    
      “Distance circular.
    
    “IJ. S. Post-Office Department,
    “Office of the Second
    “Assistant Postmaster General,
    “ Washington, June 14,1878.
    
    “ Sir : To preserve accuracy in the route books of the Department, the Postmaster General requests the insertion in the columns below of the official names of the post-offices on New Mex. Boute No. 39109, between Las Yegas and Las Cruces, to be written in the order in which they are situated, with the distance from one office to another.
    “Each postmaster will give the distance of his office from the post-office immediately preceding, certifying the same by his signature. Fulfill this duty promptly, and return the paper without delay to this office.
    “Bespectfully, &c.,
    “Thos. J. Brady,
    
      “Second Assistant Postmaster-General.
    
    “Mr. Cornelius Cosgrove,
    “ Contractor, Santa Pe, New Mexico
    
    
      Distance from Las Yegas. Distance from Romerovillo_ Distance from G-allinas Springs. Distance from Anton Oliico_ Distance from Santa Rosa...., Distance from Puerto deLuna. Distance from Los Ojitos. Distance from Port Sumner.... Distance from Roswell.. Distance from Lincoln.. Distance from Port Stanton ... Distance from South Pork. Distance from Tularoso. Distance from San Augustine . To-Miles. P. M.’s signatures. To Rom eroville. To Gallinas Springs To A nton Oliico. To Santa Rosa. To Puerto de Luna. To Los Ojitos. To Port Sumner. To Roswell. To Lincoln.:To Port Stanton. To South Pork. To Tularoso. To San Augustine (ab’t) To Las Cruces. Pran’o C. De Paca. Jas. P. Whitman. E. Martinez. P. M. not at home. This is the distance so called by everybody. A. Ginlanbroski. P. Beaubien. John Holland. M. A. Upson. Jas. J. Dolan. NielDowlin. C. E. Godfrey. P. Caghlan. Benj. E. Davies. Annie Cunniüe. 429
    Of the above post-offices, those of Bomeroville, Los Ojitos, Boswell, and Lincoln were not named in the contract as being on the route. The names of the post-offices and the distances between them, as given in the above list, were in the handwriting of the Contractor.
    IV. On September 12, 1878, the Postmaster-G-eneral made the following orders:
    “Date, 1878, Sept. 12; State, N. Mex.; No. of route, 39109; termini of route, Las Vegas and Las Cruces; length of route, 442|- miles; No. of trips per week, 3; contractor, Cornelius Cosgrove; pay, $14,900.
    “Embrace Boswell on this route between Fort Sumner and Fort Stanton from July 1,1878; distance and pay hereafter to be determined.
    “(Signed) Jas. N. Tyner,
    
      “Acting Postmaster-General.”
    
    October 24,1878, the above order was modified by the following order:
    “Date, 1878, Oct. 24; N. Mex.; No. of route, 39109; termini of route, Las Vegas and Las Cruces; length of route, 367 miles; No. of trips per week, 3; contractor, Cornelius Cosgrove; pay, $14,900. Modify order of Sept. 12, 1878, No. 7772, so as to increase distance 62 miles and contractor’s pay $2,517.16 per annum, being pro rata.
    “(Signed) Jas. N. Tyner,
    
      “Acting Postmaster-General.”
    
      V. October 29,1878, tlie Post-master-General made tbe following order:
    “Date, 1878, Oct. 29; N. M.; No. of route, 39109; termini of route, Las Yegas and Las Cruces; length of route, 424 miles; No. of trips per week, 3; contractor, Cornelius Cosgrove; pay, $17,214.17. Eeduce schedule time from 180 hours to 120 hours, and allow contractor $21,876.55 per annum additional pay, being pro rata, from Nov. 15,1878. (2) Increase service four trips per week and allow contractor $52,120.96 per annum additional pay, being pro rata from Nov. 15,1878.
    “(Signed) D. M. Key,
    “ Postmaster- General.”
    
    Thereafter, to wit, September 28,1880, the Postmaster-General made the following order:
    “Date, 1880, Sept. 28; N. M.; No. of route, 39109; termini of route, Las Yegas and Las Cruces; length of route, 424 miles; No. of trips per week, 7; contractor, Cornelius Cosgrove; pay, $91,211.68. Eeduce service to three times a week from Oct. 15, 1880, and deduct from contractor’s pay $52,120.96 per annum, being pro rata. Allow one month’s extra pay on service dispensed with.
    “(Signed) A. D. Hazeh,
    
      “Acting Postmaster-General.”
    
    The one month’s extra pay therein provided for was paid to the contractor.
    YI. Thereafter, to wit, July 14,1881, the Postmaster-General made the following order:
    “Date, 1881, July 14; N. M.; No. of route, 39109; termini of route, Las Yegas and Las Cruces; length of route, 424 miles; No. of trips per week, 3; contractor, Cornelius Cosgrove; pay, $39,090.72. From July 24, 1881, increase running time from 120 hours to 180 hours each way, and deduct $21,876.55 from annual pay of contractor, being the amount heretofore allowed for expedition. No allowance of extra pay.
    “(Signed) Thomas L. James,
    “ Postmaster- General.”
    
    The contractor has never been paid for the reduction of service there stated. The amount is $1,823.05.
    YII. On July 1, 1878, and until after the orders of September 12 and October 24,1878, mail, passengers, and freight from Fort Sumner, N. Mex., to Fort Stanton, N. Mex., points named in the said contract as situated on route No. 39109, were carried by coach via Boswell, N. Mex., there being no other practical route between the two first-mentioned points.
    The Postmaster-G-eneral predicated his increased allowance of distance upon the supposition that the claimant might have used an old road which had, in fact, been abandoned for many years, and was impracticable for wagon transportation by reason of washouts and the scarcity of water for drinking purposes for man and beast. The mail had not been transported over this abandoned road for many years prior to the letting of the contract to the claimant’s decedent, if ever.
    YIII. The original claimant performed the service required under his contract and the orders of the Postmaster-General.
    IX. The said Cornelius Cosgrove died intestate on the 12th day of February, 1889, and his widow, Amanda M. Cosgrove, has been appointed administratrix of the estate of said decedent.
    X. By reason of the orders set forth in finding xv embracing Boswell on said route, whereby the distance was stated to be increased 62 miles, the claimant was paid the sum of $2,517.16 per annum during the whole period of the contract, amounting on this account to the sum of $10,068.64.
    XI. For the increased expedition from November 15,1878, as provided by the first order set forth in finding v, to July 24, 1881, when said increased service was reduced, as set forth in the order in finding vi, the contractor was paid the $21,876.55 per annum as therein provided, and of the total sum so paid him the total amount paid on account of the assumed increase in distance due to embracing BosWell on the route was $8,610.17.
    XII. For increase in the number of trips per week provided for by the first order in finding v to October 15,1880, when said increase in the number of trips was reduced as provided by the last order in finding v, the contractor was paid at the rate of $52,120.96 per annum, making in all on this account, including’ the one month’s extra pay provided by the second order in finding v, the sum of $104,241.92. And of this sum the total amount paid him on accormt of the assumed increase in distance, due to the order embracing Boswell on said route, was $15,242.88, which sum, together with the amounts set forth in findings X and XI, amounting in the aggregate to $33,921.69, the defendants ask may be set off against any sum found due the claimant.
    
      Upon tbe foregoing findings of fact the court decided as. conclusions of law:
    1. That there is due the claimant; Amanda M. Cosgrove,, administratrix of the estate of Cornelius Cosgrove, deceased, on finding vi, the sum of $1,823.05.
    2. That there is due the defendants from the claimant, as administratrix, etc., on their counterclaim, on findings x, xi,. and xii, the sum of $33,921.69, and so much of the amount as may be necessary be, and the same is hereby, ordered set off against the amount found due the claimant.
    3. Upon the whole case, the defendants are entitled to recover judgment against the claimant, Amanda M. Cosgrove, administratrix of the estate of Cornelius Cosgrove, deceased, in the sum of $32,098.64, to be paid out of the estate, if any,, of said deceased.
    
      Mr. A. J. Willard for the claimant.
    
      Mr. Charles C. Binney (with whom was Mr. Assistant Attorney-General Dodge) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

The claimant seeks to recover for one month’s extra pay under the contract set forth in the findings, entered into by her decedent and the defendants for the transportation of the-United States mail over post route No. 39109, in the Territory of New Mexico, from July 1,1878, to June 30, 1882.

The contract, among other things, provides:

“3d. To take the mail and every part thereof from, and' deliver it and every part thereof at, each post-office on the-route, or that may hereafter be established on the route (or on any route that may hereafter be established and to which this contract may be extended as hereinafter provided), and into the post-office at each end of the route, and into the post-office, if one is there kept, at the place at which the carrier stops for the night, and if no post-office is there kept to lock it up in some secure place, at the risk of the contractor.”

On October 29,1878, the Postmaster-General made the order set forth in finding v, whereby, among other things, the schedule time was reduced from one hundred and eighty hours to one hundred and twenty hours, and for such increased or expedited service the contractor was allowed the additional, sum of $21,876.55 per annum.

Thereafter the Postmaster-General made tbe order set forth in finding Yi, whereby the schedule time, provided for by the preceding order, was increased from one hundred and twenty hours to one hundred and eighty hours, thereby restoring the original schedule time. No allowance was made to the contractor for the service so dispensed with, and it is for this that the claimant, under the provisions of the contract recited, seeks to recover one month’s extra pay, amounting to $1,823.05.

The defendants do not controvert the claimant’s right to recover, but interpose a counterclaim for the sum of $33,921.69, originating as set forth in findings x, XI, and xn, for which they demand judgment.

It will be observed that in the advertisement for proposals the distance of the route was stated at 442J miles. The distance was not- stated in the contract, though the route was otherwise described the same as in the advertisement.

After the execution of the contract and before the contractor began to carry the mails thereunder, he, at the request of the Postmaster-General therefor, furnished him with “the official names of the post-offices on New Mexico route No. 39109 between Las Vegas and Las Cruces,” giving the distance from one office to another, and stating the total distance of the route at 429 miles.

And among other things, the contractor, in giving the official names of the post-offices on the route, stated that Romeroville, Las Ojitos, Roswell, and Lincoln were located on the route, though these names did not appear in the advertisement, nor were they inserted in the contract.

This action on the part of the contractor indicates very clearly the route as he understood it, i. e., that the only practical route was via Romeroville, Las Ojitos, Roswell, and Lincoln, and that the distance was 429 miles.

We are strengthened in this view by the findings which show that the route via Roswell was the only practical route and that the contractor during the whole period of his contract transported the mails via Roswell.

Consequently, he was so transporting the mails when the order of September 12, 1878, was made embracing Boswell on the route between Fort Sumner and Fort Stanton from July 1, 1878.

Boswell was iu existence as a post-office at and before the time tbe contract went into effect, as stated by the contractor in his response to the Postmaster-General, and was located on the route over which he was to transport the mails, so that by the terms of his contract, as construed by himself, it was his duty “to take the mails and every part thereof from, and deliver it and every part thereof at, each post-office on the route or that may hereafter be established on the route,” without extra pay, as no change of distance was involved or additional stock or carriers required. (R. S., sec. 3961.)

' When the order embracing Roswell on the route was modified by the order of October 24, 1878, as set forth in finding-iv, it was stated that the length of the route was 367 miles, and that by embracing Roswell thereon the distance was increased 62 miles, for which the contractor Avas allowed and paid $2,517.16 per annum additional pay during the whole period of his contract.

This latter order Avas not only in conflict with the distance as given in the advertisement for proposals, but Avas in conflict with the distance as given by the contractor in his own handwriting, and the court is without explanation with reference thereto.

Under Revised Statutes, section 3941, it is made the duty of the Postmaster-General, before making any contract for carrying the mails, to advertise for proposals, among other things describing the routes; and by Revised Statutes, section 3949, all contracts “shall be awarded to the lowest bidder tendering-sufficient guaranties for faithful performance.”

The contract once entered into and existing, its terms could not be changed except in the manner specified in Revised Statutes, sections 3957, 3958, and 3959, requiring notice and a letting “the same as at the letting- of original contracts.”

Under Revised Statutes, section 3960, the Postmaster-General is authorized to allow a contractor compensation, as therein provided, for additional service, expressing in the order requiring such additional service the sum to be paid therefor.

But before compensation can be paid under such order, it must appear not only that the sum to be paid was “ expressed in the order and entered upon the books of the Department,”' but that service additional to that embraced in the contract has been performed.

The defendants, in their advertisement for proposals, after describing the route, stated the distance at 442J miles,- while tbe contractor, in. response to tbe request of tbe Postmaster-General tberefor, stated, in bis own bandwriting, the distance at 429 miles, and that Boswell was one of tbe post-offices on tbe route. So that tbe contractor construed bis contract to embrace Boswell as one of tbe post-offices to and from which be was to transport tbe mails.

He did so transport tbe mails during tbe whole period of bis contract, and there was no other practical route over which be could have performed tbe service, and this be was presumed to know, especially under tbe instructions given to bidders as set forth in finding I.

We conclude, therefore, that no additional service to that contemplated by tbe advertisement and tbe contract was performed by tbe contractor in carrying the mails to and from Boswell and that tbe order fixing compensation tberefor was in violation of law, as tbe contractor was bound to know.

It follows that tbe money paid to tbe contractor by reason of tbe assumed increase in distance due to the order embracing Boswell on tbe route, as set forth in findings x, xi, and xii, was illegally paid, as tbe contractor was bound to know.

It was not contended on tbe trial that money so paid could not be recovered back on tbe counterclaim, as tbe claimant’s theory of the case was that tbe order embracing Boswell on tbe route was for “ additional service ” within tbe meaning of Bevised Statutes, section 3960, and that tbe order fixing compensation tberefor was valid, and hence tbe counterclaim bad no foundation.

But having reached a conclusion adverse to the claimant’s contention, it only remains to say that tbe one month’s extra pay sought to be recovered is in part based on tbe assumed increase in distance due to tbe order embracing Boswell on tbe route, which runs through tbe whole account, and we think tbe suit in effect challenges tbe correctness of tbe accounts as settled and invites tbe court to go behind that settlement, to reexamine all tbe questions arising out of tbe claim for tbe one month’s extra pay. (McElrath v. United States, 102 U. S., 426, 441; The United States v. Burchard, 125 U. S., 176, 180.)

Our conclusion is that on the whole case tbe defendants are entitled to recover on their counterclaim tbe sum of $32,098.64, and judgment will accordingly be entered against tbe claimant as administratrix of tbe estate of Cornelius Cosgrove, deceased, to be paid out of tbe estate, if any, of said deceased.  