
    RILEY W. WOODLIEF v. THE UNITED STATES.
    [No. 15965.
    Decided June 8, 1891.]
    
      On the Proofs.
    
    The Postmaster-General, finding that the mail-messenger service in St. Louis is not properly performed, suspends it and employs a third paity at higher compensation. The contractor requests that the service he restored to him, and agrees to pay what was paid to the substitute. He now claims that the suspension was without cause.
    I. Where a mail carrier brings his action under a contract which made the Postmaster General the judge of the efficiency of the service, he must prove that he performed the service required by the contract, and that the Postmaster-General acted in bad faith.
    II. Where a mail-transportation service, suspended because of an alleged imperfect performance, is restored on condition that the contractor ■ shall pay the cost of the service during suspension, it will be obligatory upon him.
    
      The Reporters' statement of tbe case:
    The following are the facts of the case as found by the court:
    I. The claimants and defendants on the day of the date thereof entered into a written contract as follows:
    “Mail-messenger, transfer, and moil-station service in the city of St. Louis, Mo., from July 1, 1883, to June 30, 1887, route No. 28675, $16,998 per annum.
    
    “This article of contract, made the 10th day of March, 1883, between the United States of America (acting in this behalf by T. O. Howe, Postmaster-General) and Riley Y. Woodlief, contractor, and William H. Woodlief and John It. Woodlief, as sureties—
    “ Witnesseth, that whereas the proposal of the said Riley Y. Woodlief, under the advertisement of the Postmaster-General, dated January 15, 1883, for the performance of the mail-messenger, transfer, and mail-station service at the city of St. Louis, in the said advertisement described, at and for the sum of sixteen thousand nine hundred and ninety-eight dollars per year, for and during the term beginning on the first day of July, 1883, and ending June 30,1887, 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 tbe mail of tbe United States, using sucb proper means tberefor, 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:
    
      “Schedule of service now required.
    
    Railroad depots and steamboat landings. Distance from post-office to depot and landings. Miles. Rods. No. of trips per week from post-office to depot and landings. No. of trips per week from depot and landings to post-office.
    Union depot. 27 279 165
    St. Louis,Iron Mountain and Southern depot, Chotean avenue.. 269 6
    "Wabash, St. Louis and Pacific Western depot, North Market- street. 237 6
    St. Louis and Cairo Narrow Gauge depot, East St. Louis. Ill. 53fe 12
    West End Narrow Gauge depot. 248| 6
    St. Louis and Memphis Packet Co.’s wharf boat.. 72 6
    Keokuk Northern Line Packet Co.’s wharf boat. 70
    Main Street depot. 70
    The contractor for this route will, if the needs of the service require it, carry storage mails six trips, more or less, each way daily between the post-office and the Union depot.
    
      “Mail-station service.
    
    
      Miles) Hods.
    
    Erom P. 0. to P. 0. North St. Louis station. 2 206 Andhack, 25 trips perweek.
    “ “ “ “ West “ “ . 2 248 “ “ 25 “ “ “
    “ “ “ South “ “ . 6 J60 u « 19 W “ “
    “ “ “ “ East “ “ Ill... 1 160 “ “ 19 “ “ “
    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 transfer through the city; and will do and perform all other mail-messenger, mail-station, and transfer service now being performed in the said city of St. Louis,"and any and all new or additional mail-messenger, mail station, or transfer service in the said city, whether to and between depots, stations, and landings now established and those which may hereafter be established, or to and from postal or mail cars in railroad depots, yards, or adjacent to depots, which may become necessary and be required by the Postmaster General during tiie 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 hereafter be established, as the postmaster at St. Louis may, with the approval of the Postmaster-General, order and direct.To carry said mails in a safe and Secure manner, free from wet or other injury, in substantial one or two horse wagons of sub ficient capacity for the entire mail; the wagons to be employed in the performance of the service to be built with closed bodies, paneled from bed or sill to the height of an ordinary wagon body; above to be built of plain wood, panel set off with molding, lined with canvas, with curved roof; the rear shall open below by gate, to drop to a level with the floor of the wagon, to fasten by means of a catch when shut; above by door hinge, or spring hinges, so arranged that it shall shut tighc agaiust the gate and lock. The double wagons in all cases, and the single wagons whenever the proper performance of the service requires it, shall have double doors in the side, extending from the paneled frame of the body to the drip of the roof; these doors shall be hung on spring hinges; the locks and hinges to be used on the doors of all wagons shall be of the same make and pattern as is on exhibition on the sample door in the office of the Second Assistant Postmaster-General at Washington, I). 0. On the front shall be a seat for the driver, with foot-board trimmed and finished in leather. The wagons shall be kept painted and varnished in a thorough manner, and ornamented according to specifications, and shall be frequently washed and kept clean and at all times be kept in good order and appearance. The painting, as to color, and the ornaments, as to design, both on running gear and body, shall conform to the painting and ornamenting shown in the colored drawings on exhibition at the office of the Second Assistant Postmaster-General at Washington, D. 0. The bodies of such wagons shall be made to conform to the lithographic drawings of the side and rear elevations of both single and double wagons hereto appended and made part of this contract, giving scale of dimensions. In case it is desii ed to increase or decrease the size of said wagons, such increase or decrease shall be made in exact proportion as to height and length, the Postmaster-General reserving the right to vary at any time, when in his judgment the service may require it, the plan or form of wagons to be used in the service. And the said mails, when carried in the nighttime, to be accompanied by at least one person beside the driver, as guard, each to be over the age of sixteen years, of good moral character, who have taken the oath prescribed by law, and who are able to read and write the English language. Only first-class horses shall be used, and the horses, wagons, harness, service, guards, and drivers to be subject at all times to the control and approval of the postmaster of the city of St. Louis. The said mails to be delivered into the post-office and into the stations, and at the depots into the cars.
    “They also undertake, covenant, and agree with the United States of America, and do bind themsei ves, jointly and severally, as aforesaid, to be accountable and answerable in damages for the person to whom said contractor shall commit the care and transportation of the mail, and for his careful and faithful performance of the obligations assumed herein and those imposed by law; not to commit the care or transportation of the mail to any person under sixteen years of age, and not of good moral character, who has not taken the oath prescribed by law, or who can not read and write the English language; and to discharge any carrier of said mail whenever required so to do by the Postmaster-General; and each carrier shall, when on duty, wear a uniform, as speciiied in.the advertisement bf this service.
    “For w’hich service, when performed, the said Riley Y. Woodlief, contractor, is to be paid by the United States the sum of sixteen thousand nine hundred and ninety-eight dollars a year, to wits Quarterly, in the months of November, February, May, and August, by warrants on the Treasury, or drafts on the postmaster at St. Louis, at the option of the Postmaster-General; said pay to be subject, however, to the conditions as hereinafter stipulated, or to be suspended in case of delinquency.
    “ 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 ; and that there will be no diminution of compensation on account of the discontinuance of such portions of the service as may become unnecessary during the period of this contract-.
    “And it is further stipulated and agreed that for a failure to deliver the mail to a departing train in time to go by said train, or for not delivering the mail at the post-office immediately upon its arrival; for suffering other business or engagements, or any other cause whatever not beyond the control of the contractor, to delay or interfere with the prompt delivery of the mail at the post-office, depots, and wharf, or for carrying the mail in a manner different or inferior to that hereinbefore specified; for failure to provide a guard for the mail as hereinbefore mentioned wheu the same is conveyed at night; for suffering the mail to be wet, injured, lost, or destroyed ; for all or any of which they shall forfeit a sum, in the discretion of the Post master-Gen eral, according to the nature and frequency of the delinquency.
    “And it is further stipulated and agreed that, within the meaning of this contract, foreign mails in transit across the territory of the United .States shall be deemed and taken to be mails of the United States. ,
    “And it is further stipulated and agreed that the Postmaster-General may annul this contract for repeated failures, for violating the post-office laws, for disobeying the instructions of the Dei>artment, for assigning the contract, or whenever the contractor shall become a postmaster, assistant postmaster, or member of Congress.
    “And it is farther hereby stipulated and agreed, and made an express condition of this contract, that no member of Congress shall be admitted to any share or part of this contract, or to any benefit to arise thereupon.
    “And it is further hereby stipulated and agreed, and made an express condition of this contract, that this contract is to be subject to all the conditions imposed by law, and by the several acts of Congress relating to post-offices and post-roads.
    “ In witness whereof the said Postmaster-General has caused the seal of the Post-Office Department to be hereto affixed, and has attested the same by his signature, and the said contractor and his sureties have hereto set their hands and seals the day and year set opposite their names, respectively.
    “ W. Q. Gresham,
    “ Postmaster-General.
    
    “By B. A. E.,
    “ Second Assistant Postmaster- General.
    
    “BlLEY Y. WOODLIEE,
    
      “Contractor.
    
    II. On the day of the- date thereof the following letter was sent claimant:
    “ Washington, D. 0., Aug. 33,1883.
    “ Sir : Information has been received by this office that the equipment used and operated by you in the performance of the mail messenger and transfer service at Saint Louis, Mo., is of inferior quality and insufficient for the demands of the service in the following particulars, viz:
    “ 1. The wagons have not been kept clean and in first class condition, with two exceptions.
    “ 2. The drivers have not been uniformed.
    “3. Bo guards have accompanied mails after nightfall with one exception.
    “ 4. The number of wagons now in use is insufficient for the service to be performed.
    “You are informed that compliance with the terms of your contract will be insisted upon relative to the quality of equipment and special requirements of the service; and to that end, to enable you to provide for the performance of the service in accordance with its requirements, you will be allowed until the 15th proximo to take such action as you may deem expedient to remove its present objections and provide for its proper performance.
    “ The postmaster at Saint Louis, Mo., and the superintendent railway mail service at Saint Louis have been directed to inspect your equipment on that date, and if it be found that at that time you shall not have p>ovided for the proper perform-anee of tbe service, such action will then be taken to secure a compliance with your contract as the facts may warrant.
    “ If you will not comply with your contract the route will be relet at your expense.
    “ Yery respectfully,
    “ H. D. Lyman,
    
      “Acting Second, Asst. P. M. General.
    
    “ Mr. Riley Y. Woodlief,
    “ Contractor, Cincinnati, Ohio?
    
    In answer to the foregoing communication the claimant sent the following letter:
    “ Route 28075, 423 S. 12th Stbeet,
    “ St. Louis, Mo., Sept. 21st, 1883.
    “ Sib : In reply to yours of the 13th ult., “ B. L.,” in reference to insufficiency of equipment used by me in the mail-messenger and transfer service on Mo. route Ro. 28075,1 have to state that I purchased same wagons used by the former contractor on this route.
    “After I had them inspected by one of the leading manufacturers in St. Louis, who pronounced them good, and only needing repairs to make them as serviceable as new ones.
    “ To the above I have since added one new 2-horse wagon, and will have another new large-size 1-horse one finished by the 1st of Oct. Of the fifteen wagons purchased of former contractor all are now serviceable, with the exception that four of them need painting, and this I will have done as soon as the workmen can do it.
    “As to the number of wagons I have being insufficient to perform the service, I will state I now have two extra ones in my barn, that are used only when repairing is being done, and after the 1st of Oct. I will have three.
    “ Will try to have wagons washed and kept in satisfactory conditipn.
    “ Our latest mail in or out of the office is at 8:25 p. m., except one in mail at 10:15 p. in.
    “ I have not placed guards in any of the wagons carrying the mails up to 8:25 for the reason that most of the mails are accompanied by R. P. O. clerks, and for the reason that it is so early in the evening that I did not suppose the Department would require it.
    “ I have had guard on the wagon carrying the mail from the 10:15 p. m. train, and for all delayed mails coming in after that hour when not accompanied by R. P. O. clerks.
    “ My men have all been provided with uniforms.
    “At times 1 am compelled to discharge a man or one resigns, and I am compelled to employ another, without sufficient notice to enable him to procure uniform before he goes to work. In such instances we do the best we can to get uniform as soon as it can be made.
    
      “My horses and harness I consider first class.
    “Wish to perform my service satisfactory to my officials here and at the Department, and when it is not so will endeavor to make it so on notice.
    “ Yery respectfully,
    “R. Y. Woodliee.
    “ Seoond Assist. P. M. Gen’l,
    “ Washington, D. 0.”
    
    On the day of the date the following order was made and served on plaintiff:
    “Washn., D. O., 0., 1883.
    “R. Y. Woodliee,
    “423 South Twelfth Sh, St. L., Mo.:
    
    “ Your letter of the twenty-first has been considered. The Dept, can not longer tolerate the equipment furnished by you, which is and has been inadequate. Consequently an order has been made suspending your service under the contract from Oct. fifth, and employment of temporary service has been authorized. “R. A. Elmer,
    “ 2nd Asst. P. M. GenHP
    
    “Office oe the Auditor oe the Treasury
    “for the Post-Office Department,
    “ Washington, D. G., June 25, 1884.
    
      Statement of account, Miley T. Woodlief, contractor, in account with the United States, MO TJ1E 28675.
    Du. ' Or.
    To am’t paid for temp, service, order 2420, at $26,973.50 per an., Oct. 8, ’85, to tfeb. 29,1884 . * $10,676.47 By trans’r from July 1, 1883, to Mcb. 31,1884, at $4,249.50 per 9?. $12,748.50
    To am’t paid for same under order 3805, modityingNo. 2420 so as to state per annum pay at $27,000.00 per annum. 10.49
    To am’t of warrant No. 5118-2,060.54
    “ ded.,1 qr., 1884. 1.00
    12,748.50 12,748.50
    *A deduction of $8.00 charged in this payment reduced the warrant that amount.
    “ Statement of ac. in compliance with letter of June 21, 1884.
    “ J. H. Ela, Auditor.
    
    “Riley Y. Woodlief,
    “423 South 12 St, St. Louis, Mo.”
    
    III. In pursuance to the order suspending the service as aforesaid the Postmaster-General employed the St. Louis Transfer Company to perform temporary service from the act of October, 1883, and continued such service by said company until February 29, 1884, at a compensation of $26,973.60 per annum, and at that rate said company was paid, which for the period from the suspension to the removal of the order .amounted to the sum of $10,676.47, as shown in the account above.
    IY. On the first day of March, 1884, the said claimant resumed service under said contract, and continued to perform the service to the satisfaction of the Department until the end of the term. In the settlement of the accounts of claimant the Department deducted the said sum so paid said company from the aggregate amount of compensation due claimant under said agreement.
    Y. After the enforcement of such order of suspension, the time of which commenced on the 8th day of October, 188'3, and continued until the 29th of February, 1884, the said claimant sought by negotiations with the Department to be restored, and was restored, as shown in finding iv.
    YI. The following are the communications and facts on which the claimant resumed said work on the 1st day of March, 1884:
    “ Post-Office Department,
    “ Office of the Second Assist. Postmaster General,
    “ Washington, D. 0., Oct. 23, 1883.
    “Gentlemen: lam in receipt of your-communication of the 18th instant, in which you, as bondsmen of B. Y. Wood-lief, contractor on route No. 28676, citsr of St. Louis, Mo., ask that he may be permitted to resume service on the route in question, or, if not permitted, that the service be given into your hands for the balance of the contract term.
    “ The service rendered by the contractor has not been such as was contemplated by the advertisement and the contract, and the complaints regarding it were of such a nature that the course of the Department in suspending him from the 8th instant to February 24,1884, in order to provide for a new service, was fully justified.
    
    “ However, upon your assurance that the service, if once more given to the contractor, will be performed in a satisfactory manner, and that the expense for temporary service employed between the dates mentioned will be promptly paid, the Department will impose no further penalty, but will reinstate the contractor from March 1, 1884.
    “As the temporary service will not expire until Feb. 29, 1884, it is presumed that the period of suspension will enable the contractor to put his equipment in proper order and enter upon his work upon the appointed date to the satisfaction of the Department.
    “A reply by telegraph and letter is requested.
    “ Yery respectfully,
    B. A. Elmer,
    
      “Second Assistant Postmaster-General.
    
    “ Messrs. Wi. H. and J. R. Woodlief,
    . “Sureties of E. Y. Woodlief, contractor,
    
      “Úoute No. 28675, Saint Louis, MoP
    
    
      “ Batavia, Ohio, Nov. 3d, 1883.
    “ Hon. B. A. Elmer,
    
      “Seed. Assist. P. ill. G., Washington, D. O.:
    
    “Sir: Yours of the 23d ult., in reference to the reinstatement of It. Y. Woodlief as contractor on route No. 28675, St. Louis, Mo., is received. In reply we have to state that we concede to the terms coutained therein.
    “Yery resp'ectfully,
    “ J. B. Woodlief.
    “ W. H. Woodlief.”
    The last communication was on behalf of the claimant, and by his consent and with his knowledge.
    
      Mr. W. S. Plippin for the claimant:
    It is insisted that as Woodlief agreed to pay, and did pay, for temporary service, which was deducted from his pay, amounting in all to $10,686.96, he is estopped in law and can not recover for that reason. This is fallacious, especially where a formal protest was made at the time against such payment and a reservation of all legal rights was insisted upon,
    The case of John S. Mosby (133 U. S. B., 273) is diréetly in point, and the court’s attention is particularly directed to the same. Though actual duress was not practiced upon Woodlief, yet he was, when consenting to pay for extra service, for all practical purposes within the power of the Government. On this so/t of consent see Pollock on Contracts, page 555 (Blackstone ed., 588 j Swift Co. v. U. 8., Ill U. S. B., 22, which fully covers this case.
    
      Mr. John C. Chaney (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
   Weldon, J.,

delivered the opinion of the court:

This claim is founded upon a contract for mail-messenger service in the city of St. Louis, as shown by the contract bearing date on the 10th day of March, 1883, as set forth in finding I.

The facts show that as early as August, 1883, the Department became dissatisfied with the mode in which the plaintiff was performing the service; that after some correspondence, on the 8th day of October, 1883, the contract was suspended by the Department and temporary service awarded to the “ St. Louis Transfer Company,” which performed the service until the 29th of February, 1884, when the plaintiff was restored to duty, and continued to perform it until the end of the term.

In the adjustment and payments of his accounts the defendants credited the plaintiff with the full compensation due him under his agreement, and deducted therefrom the amount paid the said company for the performance of the service at the rate of $26,973.60 per annum. The result of that mode of computation was, that the claimant had deducted from his aggregate compensation the sum of $10,676.47.

This suit is brought to recover that sum, and involves the necessity primarily upon the part of the plaintiff to show that he performed his contract in all its substantial requirements, and that the Postmaster-General, in ordering the suspension, acted in bad faith. Upon the subject of fines imposed by this Postmaster-General the court said:

“The statute makes the Postmaster-General the judge when a fine shall be imposed, and unless that power is exercised incompatibly with the reasonable and legitimate use of the power, parties contracting with the Government are bound by his action. The service to be performed is of such a character that a provision of that kind is essential to the successful performance of the most important function incident to the executive branch of the Government. If the Post-Office Department were subjected to the ordinary remedy for a violated contract, the measure of protection would be incommensurate to the wrong inflicted, and the mail service might thereby be impaired in that efficiency required by public policy. * * *
“The law having selected the Postmaster-General as the arbiter between the Government and contractor to determine the question of delinquency, his action in the premises, if objected to, must be impeached by showing such a state of facts as constitute in law a failure on the part of the officer to discharge the duty imposed on him iu substantial requirement with his legal duty in the premises.” (Otis v. United States, 24 C. Cls. R., 72.)

The plaintiff was not only dissatisfied with the suspension, insisting that he had done all the obligations of the contract required, but from the time of suspension until the restoration of the service to him he was seeking to resume the performance of the contract.

It is not necessary that we should pass upon the right of the Postmaster-General to suspend the execution of the contract upon the part of the plaintiff under all the facts and circumstances of this case, for the reason that the fifth finding settles, in the opinion of the court, all questions in controversy.

When the claimant was suspended in the.exercise of an assumed power upon the part of the Department he had his remedy, if the power had been improperly and unlawfully exercised.

Whatever difference existed between the parties was settled and adjusted in the arrangement under which the claimant resumed the work, and by the terms of that arrangement or settlement the claimant agreed to pay what the defendants had paid the St. Louis ‘Transfer Company, which was the amount deducted from the pay of claimant and for which he has brought this suit. The judgment of the court is that the petition be dismissed.  