
    GEORGE K. OTIS v. THE UNITED STATES.
    [No. 14245.
    Decided May 11, 1885.]
    
      On the Proofs.
    
    The claimant holds two contracts, the one for “mail-messenger service in the city of New York,” the other for “mail-station” service. The first prohibits additional compensation for additional service; the second allows it. The questions presented are: Whether certain additional services fall under the one contract or the other ? Whether the certificate of the New York postmaster is conclusive against the government? Whether the restriction of the first contract precludes the contractor from recovering additional compensation where the new service was rendered beyond the limits of the city of New York?
    I.Where mails in the city of New York were collected at a post-office station and delivered at a railroad depot, the service, being local, came within the local contract for mail-station service, and not within the transfer contract for mail-messenger service.
    II.Where mails were conveyed from the city post-office to the Harlem Railroad depot, the service, being between the central office and a railroad depot, was a transfer service, and within the mail-messenger contract.
    III.The certificate of the New York postmaster is competent to prove the necessity for and due performance of a mail-transportation service in that city, bnt cannot be admitted to determine as a matter of law under which of two contracts a service was rendered.
    IY. Though a city-transfer contract provides for “neto or additional mail - messengtr or transfer sei-viae in said city” “loithout additional-compensation,”- yet the post-office cannot compel the contractor to take the mails to another city, over the line of another contractor, for delivery there to him, unless there be a specific provision therefor in the contract.
    Y. Where “new or add-Hional service” may be required of a contractor without increased compensation, it must be construed to mean service similar in nature to that embraced in the general intent of the contract, and not an increase of an exceptional serqice specifically provided for, which properly might form part of another instrument.
    YI. A contract prepared, at the post-office, leaving to the contractor no choice as to form or phroseology, must be construed in a doubtful ease m favor of justice and against the government.
    
      
      The Reporters’ statement of the case: •
    The following are the facts as found by the court:
    I. The defendants advertised for carrying the mails in New York City as follows : - '
    “ Mail-station service, New Yorlc City.
    
    “ Post-Ofeice Department,
    “ Washington, March 1,1877.
    “ Proposals will be received at the contract office of this department until 3 p. m. of April 7, 1877 (to be decided on or before the 10th of April following), for carrying the mails of the United States from July 1, 1877, to June 30,1881, in the city of New York, as herein specified.” (Route No. 6636, R., p. 12.)
    Which, after designating the points to and from which the mails should be carried, provided as follows:
    “ It is to be understood and agreed that any increase in the service which maybe rendered necessary by the removal to other localities of any of the above-named stations, or by any other cause, may be ordered by the Postmaster-General, and shall be paid for pro rata; and also that compensation pro rata shall be deducted in case of decrease in said service caused by any such removal or by the discontinuance of any of said stations.”
    Under this advertisement the claimant made the following ' proposal:
    “ The undersigned, George K. Otis, whose post-office address is New York, county of N. Y., State of N. Y., proposes to carry the mails of the United States from July 1, 1877, to June 30, 1881, on route No. 6636, between New York City post-office and branch offices, State of New York, under the advertisement of the Postmaster-General dated March 1, 1877, “with celerity, -certainty, and security,” for the sum of fourteen thousand nine hundred ($i 4,900) dollars per annum ; and, if this proposal is accepted, he will enter into contract, with sureties to be approved by the Postmaster-General, within the time prescribed in said advertisement. .
    “This proposal is made with’full knowledge of the distance of the route, the weight of the mail to be carried, and all other particulars in reference to the route and service; and also after careful examination of the laws and instructions attached to advertisement of mail service.
    “Dated April'5, 1877.”
    This proposal was accompanied by a bond, as required by law, and was accepted by the defendants, when a contract was entered into between the claimant and defendants.
    
      So much of it is here set forth as may be necessary to present the points in the case:
    “ Boute No. 6636. $14,900 per annum.
    “35 William: St., New York City, N. Y.
    “Thisarticle of contract, made the 13th day of April, 1877, between the United States of America (acting in this behalf by D.M.Key,Postmaster-General) and George K. Otis, contractor, and Samuel L. M. Barlow and John O. Evans, as sureties, wit-nesseth:
    “ That whereas the proposal of the said George K. Otis, under the advertisement of the Postmaster-General dated March 1st, 1877, for the performance of the mail-station service at the city of New York, in the said advertisement described, at and for the sum of fourteen thousand nine hundred dollars per year, for and during the term beginning on the first day of July, 1877, and ending June thirtieth, 1881, has been accepted by the Postmaster-General:
    “Now, therefore, the said contractor and his sureties do, jointly and severally, undertake, covenant, and agree with the United States of America to carry the mail of the United States, using such proper means therefor, and particularly the wagons hereinafter described, as may be necessary to transport the whole of said mail, whatever may be its size or weight, during the term of this contract.
    *******
    “And any new or additional mail-station service which may become necessary and be required by the Postmaster-General during the term of this contract.
    *******
    “ It is further understood and agreed that any increase in the service which may be rendered necessary by the removal to other localities of any of the above-named stations, or by any other cause, may be ordered by'the Postmaster-General, and shall be paid for pro rata; and also thac compensation pro rata shall be deducted in case of decrease in said service caused by any such removal or by the discontinuance of any of said stations.”
    The claimant, while engaged in carrying the mails under this contract, and also under the contract for mail-messenger service set forth in finding ii, was directed by the postmaster in New York City to perform the following trips: Eighteen round trips per week from Station E, No. 465 Eighth avenue, to the Hudson Biver Bailroad depot, Thirtieth street and Tenth avenue ; six trips per week from post-office to Harlem Bailroad depot, Forty-second street and Fourth avenue, 6.30 a. m. train. These trips were duly performed. The service between Station B and the Hudson River Railroad depot amounted to 2,784 miles; the allowance therefor under the station-service contract in this finding set forth would be $657.58. The service between the post-office and the Harlem Railroad depot amounted to 2,607.82 miles; the allowance therefor under the station-service contract in this finding set forth would be $615.97. The claimant duly rendered laccounts for this service, verified under oath, each account having the following title, omitting the dates :
    “ The Post-Office Department to George K. Otis, contractor.
    , “For extra service in conveying the United States mails on route No. 6636, New York City.”
    Appended to each account was the following certificate:
    “Ido hereby certify that the service as statedin the foregoing account was necessary and was duly performed by George K. Otis, in pursuance of orders issued from this office.
    “ T. L. James, P. M.,
    
    “Per H. G. Pearson, Ass’t P. M”
    
    These certificates were dated at the New York post-office.
    II. The defendants also advertised for carrying mails in New York City on route No. 6635, as follows:
    “ Mail-messenger service, New York City.
    
    “ Post-Ofeicb Department,
    “ Washington, March 1,1877.
    “ Route Ho. 6635.
    “ Proposals will be received at the contract office of this department until 3 p. m. of April 7,1877 (to be decided on or before April 10th following), for carrying the mails of the U nited States between the post-office in the city of New York and the railroad stations and steamboat landings, and between the several stations where transfer service is required, from July 1, 1877, to June 30, 1881.
    # * * * # # *
    “The following schedule shows the mail-messenger and transfer service now required at New York ; but the accepted ■bidder under this advertisement will be required to perform, without additional compensation, any and all new or additional service that may become necessary during the term of the contract, whether to and between depots and landings now estab-lisbed or those which may be hereafter established. Bids must be made with this distinct understanding, and must name the amount per annum for the whole service, and not by the trip. There will be no diminution of compensation on account of the discontinuance of such portions of the service as may become unnecessary during the contract term, but deductions will be made for neglect of duty.
    #• # # * ■ # * #
    “ Proposals should be sealed, superscribed ‘ Proposals for mail messenger service, New York, N. Y.,’ and addressed to the Second Assistant l’ostmaster-General, Post-Office Department, Washington, D. C.
    
      “Schedule of service now required.
    
    
      
    
    “ TRANSPEES.
    “Grand Central depot to .Erie Railway, 3.35 miles, six times •a week.
    “Grand Central depot to Pennsylvania Railroad, 3.55 miles, twenty-four times a week.
    “ Grand Central depot (Boston line) to Grand Central depot (New York Central aud Hudson River line), .35 of a mile, often as required.
    “ The transfer service to include the conveyance of all cases of posi-office supplies for transit through the city.”
    In answer to this advertisement the claimant submitted the following proposal:
    
      “ The undersigned, George K. Otis, whose post-office address-is New York, county of New York, State of New York, proposes to carry the mails of the United States from July 1,1877, to June 30, 1881, on mail-messenger route No. 6635, between the post-office at New York Oity and the railroad stations and steamship landings in said city, including transfers between stations, and under the advertisement of the Postmaster-General dated March 1, 1877, for the annual sum of fifty-seven thousand nine hundred ($57,900) dollars per annum; and if this proposal is accepted, he will enter into contract, with sureties to be approved by the Postmaster-General, within the time prescribed in said advertisement.
    “ This proposal is made after due inquiry into and with full knowledge of all particulars in reference to the service, and also alter careful examination of the conditions attached to the advertisement, and with the’’—
    This proposal was accompanied by a bond, as was required by law, and was accepted, and the parties entered into the following contract:
    “UNITED STATES OR AMERICA.
    
      “Mail-messenger service in the city of New Yorlcfrom July first, 1877, to June thirtieth, 1881.
    “35 WilliaM Street, New Y ore City, N. Y.
    “ Route No. 6635. $57,900 per annum.
    “ This article of contract, made the 13th day of April, 1877, between the United States of America (acting in this behalf by D. M. Key, Postmaster-General) and George K. Otis, contractor, and Samuel L. M. Barlow and John O. Evans, as sureties, witnesseth:
    “ That whereas the proposal of the said George K. Otis, under the advertisement of the Postmaster-General dated March first, 1877, for the performance of the mail-messenger service at the city of New York in the said advertisement described, at and for the sum of fifty-seven thousand nine hundred dollars per year, for and during the term beginning on the first day of July, 1877, and ending June thirtieth, 1881, has been accepted by the Postmaster-General:
    “Row, therefore, the said contractor and his sureties do, jointly and severally, undertake, covenant, and agree with the United States of America to carry themails of the United States, using such proper means therefor, and particularly the wagons hereinafter described, as may be necessary to transport the whole of said mail, whatever may be its size or weight, during the term of this contract, as follows, to wit:
    
      “From the New York City post-office to the Pennsylvania Eailroad depot (Jersey City) fifty-four (54) times per week; returning from said depot to post-office twenty-seven (27) times per week.
    “ From the New York City post-office to the Pennsylvania Eailroad depot (feet of Cortlandt street) and back fifty (50) times per week.
    “From the New York City post-office to the Erie Eailway depot forty-three (43) times per week; returning from said depot, to post-office fifty-seven (57) times per week.
    “From the New York City post-office to the depot of the Northern Eailroad of New Jersey and back twelve (12) times per week.
    “ From the New York City post-office to the New Jersey and New York Eailroad depot eighteen (18) times per week; returning from said depot to post-office twenty-four (24) times per week.
    “ From the New York City post-office, to the Mont Clair and Greenwood Lake Eailroad depot and back sis (6) times per week.
    “From the New York City post-office to the New Jersey Midland Eailroad depot and back six (6) times per week.
    “From the New York City post-office to the depot of the Central Eailroad of New Jersey forty-nine (49) times per week; returning from said depot to post-office thirty-seven (37) times per week.
    “ From the New York City post-office to the Delaware, Lack-"awanna and Western depot thirty-six (36) times per week; returning from said depot to post-office forty-two (42) times per week.
    “ From the New York City post-office to the New York and New Haven Eailroad depot fifty (50) times per week; returning from said depot to post-office forty-four (44) times per week.
    “From the New York City post-office to the New York and Harlem Eailroad depot and back eighteen (18) times per week.
    “ From the New York City post-office to the New York Central and Hudson Eiver Railroad depot forty-five (45) times per week; returning from said depot to post-office seventy-one (71) times per week.
    “ From the New York City post-office to the New Jersey Southern Eailroad depot and back twelve (12) times per week.
    “ From the New York City post-office to the Staten Island Eailroad depot and back eighteen (18) times per week.
    “From the New York City post-office to the Fall Eiver boat landing six (6) times per week; returning from said landing to post-office seven (7) times per week.
    “ From the New York City post-office to the Long island Eailroad depot and back thirty-six (36) times per week.
    
      “ TRANSFERS.
    “ Grand Central depot to Erie Railway six times a week.
    “ Grand Central depot to Pennsylvania Railroad twenty-four times a week.
    “ Grand Central depot (Boston line) to Grand Central depot (New York Central and Hudson River line) as often as required.
    . “ The transfer service to include the conveyance of all cases of post-office supplies arriving for transit through the city, each and every transfer to be made as often as may be'required by the Postmaster-General, the transfer service to include the conveyance of all cases of post office supplies arriving for transit through the city; and will do and perform all other mail-messenger and transfer service now being periormed in the said city of New 'York, and any and all new or additional mail-messenger or transfer service in the said city, whether to and between depots and landings now established and those which may hereafter be established, which may become necessary and be required by the Postmaster-General during the time of this contract, without additional compensation, said service to be performed at such hours of arrival and departure at and from the above-designated points or places, or those which may be hereafter established, as the postmaster at New York City may order and direct.
    *##*###
    “It is hereby stipulated and agreed that the Postmaster-General may, if it be required by the public interest-, order new or additional service which may become necessary to be performed, which shall be performed without additional compensation ; also that he may discontinue or curtail the service, in whole or in part, if in his judgment the public interest shall so require, he allowing as lull indemnity to the contractor one month’s extra pay on the amount of service dispensed with, and a pro rata compensation for the amount of service retained and continued.”
    III. While the claimant was engaged in the performance of this contract, the defendants, on the 12th day of November, 1878, directed him to transport mails which theretofore had been transferred, as required by the contract, “ from the New York City post-office to the Pennsylvania Railroad depot (foot of Cortlandt street) and back fifty times per week,” across the Hudson River to the Pennsylvania Railroad depot at Jersey City, in the State of New Jersey. This service the claimant performed from November 12, 1878, to July 1,1881. The pro rata, which is also the reasonable value of the service, is the-sum of $15,787.78.
    IY. When the contract between the claimant and defendants^ was executed, this extra service was being performed by the-Pennsylvania Railroad Company, under contract with the United States.
    Y. The claimant duly filed his account for such extra service in the Post-Office Department, where it was pending until the filing of his petition in this court.
    
      Mr. James Coleman and Mr. John B, Abney for the claimant.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants.
   Davis, J.,

delivered the opinion of the court:

In the spring of 1877 the claimant contracted to transport the mails between the United States post-office in New York City and various railroad stations and steamboat landings, and also to transfer certain through mails from one railroad station to another. The route covered by this agreement was known as No. 6635. The contract ran for four years from July 1, 1877, and the service was designated “ mail-messenger service in the city of New York.” Among other things the claimant agreed in this contract to carry the mails from the city post-office “ to the Pennsylvania Railroad depot (foot of Cortlandt street) and back fifty times per week; ”• and that for any new or additional service in “ said city” which he might be ordered to perform he should not receive additional compensation. Another clause in the contract also prohibits the allowance of additional compensation for additional service, but omits the limiting words " in said city.” It is upon the interpretation of these two apparently inconsistent clauses that this branch of the case turns, for the claimant alleges that after entering upon the performance of the contract he was ordered to extend some of his Oort-landt-street trips to Jersey City; this service he contends was extra; and as it was not performed in the city of New York, he believes himself entitled to compensation therefor. ■

spring of 1877 to carry the mails between the city post-office and various sub-post-offices or post-office stations in New York. The route is known •as No. 6636, and the caption of the contract shows it to be for “ mail-station service in the city of New York.” The term was the same as that of the messenger contract, to wit, four years from July 1, 1877.

While the claimant was performing this contract he was ordered to transport the mail eighteen round trips per week between Station E and the Hudson River Railroad depot, and also to make six trips each week from the city post-office to the Harlem Railroad depot. Neither of these services was named, in the station contract, but that instrument provided that any increase in mail-station service should be paid for pro rata, and the claimant, holding these trips to be extra, service under this contract, asks compensation therefor, to which, it is not disputed, he is entitled if the service was rendered under the station contract, and not, as the government contends, under the messenger contract.

The claimant puts in evidence certificates of the postmaster in New York City, which are annexed to the accounts for the extra trips, presented after they had been performed. These certificates state that the service as shown in the accounts was necessary, and duly performed under orders issued from the post-office, and are objected to by the defendants so far as they may be used to prove under which contract the service was performed, or that orders had been theretofore issued from the post-office directing the claimant to perform it.

As to the eighteen trips from Station E, the certificate, if admitted, would be merely cumulative, for the trips were in fact made, and on its face the service is station and not messenger service; the mails were collected at a post-office station, and the fact that they were delivered at a railroad depot and not at another post-office station, or at the city post-office, is not of consequence, as we find in this contract provision for the transfer of mails to and from stations of the Elevated Railroad; and, further, the general purpose of the messenger contract is not directed to such purely local service as this.

The trips between the city post-office and the Harlem Railroad stand upon a very different foundation. Upon their face they clearly fall within the messenger contract, connecting, as they do, the central office with a railroad depot, and nothing except the postmaster’s certificate appears in the record tending to show (even if that be of consequence) that the mails carried were in fact intended for a substation. It is conceded by the defendants that this certificate is competent to prove the necessity and due performance of the service, but that it cannot go further. This point, is well taken. To admit the document as proof of the particular contract under which the work was done would involve an acceptance of the postmaster’s conclusion of law, based upon his interpretation of the two contracts in the light of facts not before the court, and which is contrary to the evidence here produced.

Returning now to the claim for increase of trips between Cortlandt street and Jersey City, the claimant urges that this service, not being within the geographical limits of New York City, does not fall within clauses prohibiting extra compensation for new or additional service, and, further, thatthe service was not new or additional within the true meaning of the agreement. Both these propositions the counsel for the government deny, contending that as the claimant, in addition to the Cortlandt-street trips, agreed specifically to carry mails to Jersey City fifty-four times each week, the extra trips to that point fall within the prohibitory clauses. To sustain this contention, which has been fully and ably presented, it must be shown that the second clause, broadly prohibiting extra compensation for new or additional service, limits the first clause,, which confines the prohibition to additional service within the city limits. The main object of the contract was to secure the-safe and speedy transfer of mails between the city post-office and the railroad and steamboat lines. It was intended to provide a connection between the principal city office and the railroad and steamboat system, and between different links of this system. Such being the purpose of the instrument, and the Pennsylvania Company having its terminus in New York, it. would naturally be inferred that a delivery of mails intended for that company at its. Cortlandt-street depot would be sufficient, and any exceptions to this course would be distinctly set forth and limited to those specifically named. That is, that a contract for the transfer of mails in a city would not call for their delivery in another city, over a portion of the line of the very company into whose custody they were ultimately to be given, unless specific agreement were made to that effect. Among the routes specified as let to the claimant were several requiring* delivery in cities outside of New York, as tbe fifty-four trips to Jersey City already mentioned and others to Ho-boken and to Long Island City. The trips were named in the •contract, their number and length were set forth in the advertisement in detail, and if we stop here the claimant can beheld only to the performance of the exact service specified.

Thereappears, however, in the agreement this clause: “And [the contractor] will do and perform any other mail-messenger and transfer service now being performed in the said city of New York, and any and all new or additional mail-messenger or transfer service in the said city, whether to and between depots and landings now established and those which may hereafter be established, which may become necessary and be required by the Postmaster-General during the time of this contract, without additional compensation.”

This distinctly confines the extra service to the city limits ; but further on appears the provision “that the Postmaster-General may, if it be required by the public interest, order new or additional service which may become necessary to be performed, which shall be performed without additional compensation.”

As we have seen, the contract, the proposal, and the advertisement aimed generally at mail transfer within the city limits; further, it appears that the Pennsylvania Railroad, at the date of the contract, was carrying mails across its ferry from Oort-landt street to Jersey Oity; it is therefore fair to assume that in the minds of the parties the Jersey City trips named in the contract were regarded as exceptional, and not subject to the same rules as to extra compensation for additional trips as the transfer service within the city limits. It is a natural inference that if the government desired this contractor, under a city-transfer contract, to take mails to another city, over the lines of another contractor, for delivery there to this other contractor, specific provision therefor would have been made.

The “ new ” service contemplated was service similar in its nature to that embraced in the general intent of the contract, such as that becoming necessary through the establishment of a new railroad station or steamboat landing in New York, while “ additional” service was to be an increase of the service which the contract as a whole contemplated, not an increase of an exceptional service which more properly might form part of an•other instrument. Certainly the term “ new or additional service” was not intended to cover the transfer from one contractor to another of au existing service previously performed by the one for pay, and which, under the defendants’ interpretation, the other must render gratuitously. This would be a change of service, not service new or additional to that prescribed in the agreement.

In the construction of this contract the government can claim no other or more favorable rule than a private individual, and as it is well known that instruments of this character are prepared by the Post-Office Department, leaving to the contractor no choice as to form or phraseology, that construction must be adopted which is more to the advantage of the claimant. Authority for this is found in Noonan v. Bradley (9 Wallace, 407), where the court said: “ If there were any doubt as to the construction which should be given to the agreement of the intes-' tate, that construction should be adopted which would be more to the advantage of the defendant, upon the general ground that a party who takes an agreement prepared by another, and upon its faith incurs obligations or parts with his property, should have a construction given to the instrument favorable to him, and on the further ground that when an instrument is susceptible of two constructions — the one working injustice and the other consistent with the right of the case — that one should be favored which standeth with the right.”

In construing the conflicting clauses of this agreement we ■have followed the rule laid down in Gibbons v. The United States (15 C. Cls. R., 174), where the court, speaking by Judge Nott, said: “ When it becomes the duty of a court to ascertain the true construction which should be given to a disputed article of a contract, there are three things which ordinarily should be the subject of consideration: 1st, the circumstances known to both parties which preceded and attended the making of the contract, in the light of which it should be interpreted; 2d, the general purpose of the contract and those specific provisions which directly or indirectly bear upon and affect the provision .which is the subject of controversy; 3d, the language and effect of the clause or article to which a construction must be applied.”

The circumstances surrounding the contract point generally to transfer within the city. The purpose of the parties was to connect the great transportation lines with each other and with the city post-office, and one of these lines was the Pennsylvania Bailroad, with its terminus in New York. The contingency contemplated by the contractor under which new or additional service could be required was the establishment within the city of new railroad depots or an increase in bulk of mails carried on the city routes. It could not have been assumed by the contfactor or his sureties that under the guise of new or additional service transportation previously performed by the railroad company for pay was to be performed by him without pay over that company’s line. The question of the amount of compensation is disputed, the government contending for a pro rata allowance based upon the total consideration named in the contract, while the claimant asks a quantum meruit and the amount actually disbursed for ferri-age. As we find that in either aspect of the case the allowance would be the same in amount, it is not necessary to consider this question.

Judgment will be entered in favor of the claimant in the sum of $16,445.36.  