
    WILLIAM H. WOOLVERTON v. THE UNITED STATES.
    [No. 16743.
    Decided April 18, 1892.]
    
      On the Proofs.
    
    This is a suit for extra service under a mail-messenger contract similar to that of Otis (20 O. Cls. E.,. 315; 120 TJ. S. E., 115). The contract requires the contractor to render “new or additional’’ service without extra charge, hut contemplates increased compensation for extra service.
    I. Under the rule in Gibbons’s Case (15 C. Cls. E., 174; 109 U. S. E., 200,) the court, when construing a disputed clause in a mail-messenger contract, will consider the oiroumstances in the light of which the contract was made, the general purpose of the contract, directly or indirectly affecting the clause under consideration, and the language and effect of the clause itself.
    II. Where a contract provides that the contractor shall “perform all new or additional messenger, mail-messenger, transfer, and mail-station service that the Postmaster-General may order, without additional compensation,” and the contractor is required to perform service some of which was performed hy Department messengers, some hy a steamship company, some hy another contractor, at the time the contract was made, it must he held that this was not new or additional within its intent, and that the contractor is entitled to additional compensation.
    
      III. A fair construction of tlie word “additional" would not transfer to wagon service a service already in existence, performed upon street . railroads, and on foot by messengers of the Department, designated by regular route numbers, and paid for out of other appropriations, nor service then performed by a foreign steamship company under a treaty provision.
    The Reporter7s statement of the case:
    The findings of fact in this case were of great length, including advertisements, tables, etc. The following are those to which the decision of the court relates:
    I. September 15,1884, the Postmaster-General of the United States caused to be published the following advertisement:
    “PROPOSALS FOR MAIL-MESSENGER, TRANSFER, AND MAIL-STATION SERVICE.
    “Post-Office Department,
    “ Washington, September 15,1884.
    
    “Proposals will be received at the contract office of this Department until 4 p. m. of January 3, 1885 (to be decided by January 12,1885), for carrying the mails of the United States iii the covered wagons prescribed by the Department on the routes herein specified in the States of Massachusetts, Khode Island, New York, Pennsylvania, Maryland, and Virginia, and the District of Columbia, being mail-messenger, transfer, and mail-station service in the cities hereinafter named between the post-offices, railroad stations, station offices, steamboat landings, and between the several stations and landings as described herein, for the term below stated, viz:
    * * * * * ¡X' #
    “New York, N. Y.
    “ From July 1,1885, to June 30, 1889.
    # * * * % # #
    “ Contracts to be filed in the Department, duly executed, within thirty days from date of acceptance of proposals.
    & * * * * *
    “ Service to and from Jersey City, Hoboken, and Long Island City is deemed service in the city of New York within the true intent and meaning of this advertisement.
    “An extra wagon, with driver, ready for immediate use, must be kept at the post-office between the hours of 5 a. m. and 8 p. m. and at such other hours as the postmaster may direct, and like wagons at Courtland Street Ferry, at the Pennsylvania Railroad depot, Jersey City, at the Grand Central depot, and at snob other points, either for mail-messenger or transfer service, when the exigencies of the service require it.
    “Bond required with bid, $150,000; cheek, $7,500.
    ###*#*#
    
      “Instructions to bidders.
    
    “1. The foregoing schedules show the service required September 1,1884, as near as can be stated. Bidders must inform themselves of the amount and character of the service that will be required during the contract term.
    “2. The contractors under this advertisement will be required to perform, without additional compensation, any and all new or additional service that may be ordered from July 1,1885, or at any time thereafter during the contract term, whether between post-offices or mail stations and railway stations or steamboat landings, or between railway stations and mail stations or steamboat landings, or between post-offices and mail stations (including mail stations, railway stations, and steamboat landings) now established or that may hereafter be 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;
    “3. There will be no diminution of compensation for partial discontinuance of service or increase of compensation for new or additional service that may be ordered during the contract term, but the Postmaster-General may discontinue the entire service on any route whenever the public interest, in his judgment, shall require such discontinuance, he allowing, as full indemnity to the contractor, one month’s extra pay.
    “ 4. ThePostmaster-General may annul a contractfor repeated failures; for violating the postal laws; for disobeying the instructions of the Post-Office Department; for refusing to discharge a driver or any other person having charge of the mail when required by the Department; for transmitting commercial intelligence or matter which should go by mail contrary to the stipulations herein, or for transporting persons so engaged; whenever the contractor shall become a postmaster, assistant postmaster, or member of Congress, and whenever, in the opinion of the Postmaster-General, the service can not be safely continued or the laws maintained on the route. Fines will be imposed for neglect of duty.
    “ 5. The Postmaster-General may, in his discretion, continue in force beyond its express terms for a period not exceeding six months any contract made under this advertisement until a new contract with the same or other contractors shall be made.
    “6. The distances given are believed to be substantially correct, but no additional pay will be allowed sliotdd they be greater than herein stated. Bidders must inform themselves as to tbe distances, the running time, the weight of the mails, the condition of hills, streets, toll bridges, ferries, and obstructions of all kinds whereby expense may be incurred. Claims for additional pay based on such grounds, or for alleged mistakes or misapprehension as to the service required, or for bridges destroyed or ferries discontinued, cannot be considered.
    “7. Foreign mails in transit across the territory of the United States shall, within the meaning of this advertisement, be deemed and taken to be mails of the United States.
    “8. The transfer service shall include the conveyance of all cases of post-office supplies arriving for transit through the cities.
    “9. Contractors will be required to convey on the driver’s seat of each wagon, whenever necessary, one railway post-office clerk, a substitute, or a messenger.
    “ 10. Drivers must be over sixteen years of age, of good moral character, and able to read and write the English language. They must take the oath prescribed by law, and must wear the prescribed cap or hat.
    “11. All service shall be performed in regulation wagons, unless otherwisementionedinstatementof-route. Fullparticulars as to style and construction of wagons required may be obtained on application to the postmasters at offices where the service is to be performed or to the Second Assistant Postmaster-General, Washington, D. C. Wagons for this service may be constructed (according to the style adopted by the Post-Office Department) of a size about midway between the large two-horse and the large one-horse wagon, preserving the plan of theformer, andfortheseat least two horsesshallbfeused. The wagons shall be kept painted andvarnishedin a thorough manner, and ornamented according to specifications. They must also be frequently washed and kept clean and in good condition. New wagons are not required by the specifications, but only wagons of the prescribed pattern, in first-class condition, and to be as substantially constructed as new wagons. First-class horses shall be used.
    “12. When mails are delayed in arrival, wagons must be kept at the depots or landings until the arrival of such mails, and the same be conveyed to the post-office without detention. Except in cases of accident, wagons containing mails must not be opened or the mails therein contained changed while in transit. The mails must be carried inside of the wagons and not on the outside or on the seat with the driver, and in' no case shall any person be allowed to ride inside of a wagon containing mail.
    “13. The equipment of the contractor shall be subject to monthly inspections, and the refusal or failure of any contractor to keep his wagons, horses, and harness in good order and appearance, or to furnish proper drivers, so as to perform the service in a style creditable to the Department, shall be sufficient cause for tbe annullment of Ms contract and the re-letting of tlie service at Ms expense.
    “14. Specifications for cap and liat. Cap: To be of all-wool blue flannel of good quality, three and one-fourth (3£) inches high, solid leather fronts one and three-fourths (If) inches deep, with one (1) small regulation P. 0.13. button on each side, a silver wreath in front inclosing the words “IT. S. Mail,” and to have one oiled linen cover. Hat: From June 16 to September 15of each year, in lieu of the cap, a straw hat, with rim not to exceed three and one-half (3|) inches in width and a crown not to exceed four (4) inches in height may be worn. A silver wreath, inclosing the words “U. S. Mail,” shall be placed on the front of the hat.
    “ 15. The wagons, horses, harness, and drivers are to be at all times subject to the approval and control of the postmaster; and the mails are to be taken from and delivered into the l>ost-offices, mail stations, steamboats, and cars at such points and at such hours, under his directions, approved by the Postmaster-General, as will secure proper dispatches and connections, and at the contractor’s expense for tolls and ferriage.
    “ 16. The number of wagons required on each route must be sufficient, in the opinion of the postmaster in each city, tor the prompt and proper performance of the service.
    “ 17. The contractor will be required to provide and keep on hand a sufficient number of extra wagons to take the place of those which may be temporarily disabled, delayed, waiting for trains, or withdrawn from service for repairs, so that the service shall always be performed in regulation wagons.
    “ 18. Every proposal must be accompanied by a bond, with two or more sureties, approved by a postmaster, and in case Avhere the amount of the bond exceeds five thousand dollars ($5,000) by a postmaster of the first, second, or third class. Bids for service the pay of which at the time of the advertisement exceeds five thousand dollars ($5,000) must 'be accompanied by a certified check or draft, payable to the order of the Postmaster-General, on some solvent national bank, of not less than 5 per centum on the amount of the annual pay on such route, and in case of new or modified service not less than 5 per centum of the amount of the bond accompanying the bid, if the amount of said bond exceeds five thousand dollars ($5,000).
    “19. Sureties on the bond of a bidder must take an oath before an officer qualified to administer oaths that they are the owners of real estate worth, in the aggregate, a sum double the amount of said bond, over and above all debts due and owing by them, and all judgments, mortgages, and executions against them, after allowing all exemptions of every character whatever. A married woman will not be accepted as a surety either on a bond of a bidder or upon a contract. Accompanying the bond of a bidder, and as a part thereof, shall be a statement of the sureties, under oath, showing the amount of real estate owned by them, brief description thereof, and its probable value, where it is situated, and in what county and State the record evidence of their title exists. Any surety who swears falsely to this statement is deemed by the law guilty of perjury, and is punishable as is prescribed by law for that crime.
    “20. All checks deposited with bids will be held until contracts are executed and the service commenced to the satisfaction of the Postmaster-General by the accepted bidder. Ohecles will then he returned hy mail to the bidders at the addresses stated in their proposals, %mless otherwise requested hy bidders.
    
    “21. There should be but one route bid for in proposal. Consolidated or combination bids (‘proposing one sum for two or more routes’) can not be considered.
    “ 22. Bidders are cautioned to mail their proposals in time to reach the Department, or to file them by the day and hour named in this advertisement, as bids received after that time will not be considered in competition with bids of reasonable amounts received in time; neither can bids be considered which are without the bond, oath, or certificate required by section 215, act of June 23,1874, and section 246, act of August 11,1876.
    “23. No bidder for carrying the mail shall be released from his obligation under his bid or proposal, notwhstanding an award made to a lower bidder, until a contract for the designated service shall have been duly executed by such lower bidder and his sureties and accepted and the service entered upon by the contractor to the satisfaction of the Postmaster-General.
    “24. No contract for carrying the mail shall be made with any person who has entered, or proposed to enter, into any combination to prevent the making of any bid for carrying the mail, or who has made any agreement, or given or performed, or promised to give or perform, any consideration whatever to induce any other person not to bid tor any such contract.
    “25. In case of failure of the accepted bidder to execute a. contract, or of the abandonment of service during the contract term, the service will be relet at the expense of the failing bidder or contractor; and any accepted bidder who shall wrongfully refuse or fail to enter into contract in due form, and to perform the services described in his proposal, may be deemed guilty of a misdemeanor, and on conviction thereof be fined and imprisoned therefor.
    “26. The Postmaster-General reserves the right to suspend the award of contract on any route for a period not exceeding thirty days after the date fixed in this advertisement, with a corresponding allowance of time for the execution of contract, and to reject all bids on any route whenever in his judgment the interests of the service require it; and also to disregard the bids of failing contractors and bidders.
    “27. Postmasters are cautioned, under penalty of removal, not to approve the bond of any bidder before the proposal is completed and the bond is signed by the bidder and his sureties, and not until entirely satisfied of the sufficiency of the sureties.
    “They are also cautioned not to divulge to anyone the • amount of any proposal certified by them.
    “Doing so will be sufficient cause for their removal.
    “28. No postmaster, assistant postmaster, or clerk employed in any post-office shall be a contractor or concerned in a contract for carrying the mail.
    “29. Bidders are requested to use the printed forms of proposals furnished by the Department, which may be obtained at the post-offices named in this advertisement, and to apply at these offices for information in regard to the service and its requirements.
    “30. Proposals should be sealed, superscribed ‘Proposals for mail-messenger, transfer, and mail-station service, city of -and addressed to the Second Assistant Postmaster-G-eneral, Post-Office Department, Washington, D. C.1
    “W. Q. Gresham,
    “ Postmaster- General.”
    
    II. Plaintiff, being the lowest bidder for said service, entered into the following contract with the United States:
    “united STATES OE AMERICA.
    
      i(Ma/il-messenger, transfer, and mail-station service in the city of New Yorlc.
    
    “ No. 6997. $165,000 per annum.
    “ This article of contract, made the 9th day of January, eighteen hundred and eighty-five, between the United States of America (acting in this behalf by the Postmaster-General) and Wm. H. Woolverton, contractor, and Ohas. T. Eeynolds, 106 Fulton street, N. ¥., and H. J. Jewett, Columbus, Ohio, as his sureties:
    “Witnesseth, that whereas Wm. H. Woolverton has been accepted as contractor for transporting the mails on route No. 6997, being the mail-messenger, transfer, and mail-station service at the city of New York, in the wagons hereinafter described, by schedules of departures and arrivals satisfactory to the Department, at one hundred and sixty-five thousand dollars per year, for and during the term beginning the first day of July, 1885, and ending June 30, 1889:
    “Now, therefore, the said contractor and his sureties do, jointly and severally, undertake, covenant, and agree with tbe United States of America, and do bind themselves—
    
      “First. To carry said mail, using therefor wagons of tbe kind hereinafter described in sufficient number to transport tbe 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 pamphlet advertisement of the Postmaster-General dated September 15,1884, and so to carry until said schedule is altered by the authority of the Postmaster-General, as herein provided, and then to carry according to such altered schedule; to carry said mails in a safe and secure manner, free from wet or other injury, in substantial one or two horse wagons of sufficient 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 tight against the gate and lock. The double wagon 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, Washington, D. 0. On the front shall be a seat for the driver, with footboard 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 colors, ornaments, and design, both in 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 desired 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 wagon to be used in the service.
    “ Second. To take the mail from and deliver it into the post-offices, mail stations, and cars at such points and at such hours, under the direction of the postmaster at New York, approved by the Postmaster-General, as will secure dispatches and connections and facilitate distribution, and at the contractor’s expense for tolls and ferriage.
    
      “ Third. To furnish the number of regulation wagons that, in the opinion of the postmaster at New York, will be sufficient for the prompt and proper performance of the service, including extra wagons to take the place of those that may be temporarily unserviceable, delayed waiting for trains, or withdrawn from service for repairs.
    
      “Fourth. To be accountable and answerable in damages for the persons to whom the said contractors 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, nor to any person not of good moral character, and who has not taken the oath prescribed by law, or who can not read and write the English language. Each driver shall wear when on duty the cap or hat prescribed in the pamphlet advertisement of September 15,1884.
    
      u Fifth. To discharge any driver, or other person employed in performing mail service, whenever required by the Postmaster-General so to do; not to transmit by themselves, or any of them, or any 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.
    
      “ Sixth. To account for and pay over any money belonging to the United States which may come into the possession of the contractor, his sureties, or employes.
    “ Seventh. That foreign mails in transit across the territory of the United States shall within the meaning of this contract be deemed and taken to be mails of the United States.
    
      “Eighth. To carry post-office blanks, mail locks, and bags, and all other postal supplies.
    
      u Ninth. To convey, whenever requested so to do, one railway post-office clerk, a substitute, or a messenger on the driver’s seat of each wagon.
    
      u Tenth. To perform all new or additional mail-messenger, transfer, and mail-station service that the Postmaster-General may order at the city of New York during the contract term without additional compensation.
    
      u For which service, when properly performed, and the evidence thereof shall have been filed in the office of the Second Assistant Postmaster-General, the said Wm. H. Woolverton, contractor, is to be paid by the United States the sum of one hundred and sixty-five thousand dollars a,year, to wit: Quarterly, in the months of November, February, May, and August, through tbe postmaster at tbe city of New York or otherwise, at tbe option of tbe Postmaster-General; said pay to be subject, however, to be reduced or discontinued by the Postmaster-General, as hereinafter stipulated, or to be suspended in case of delinquency.
    “ It is hereby stipulated and agreed by tbe said contractor and bis sureties that tbe Postmaster-General may change tbe schedule and termini of tbe route, increase, decrease, or extend tbe service without change of pay; and that tbe Postmaster-General may discontinue tbe entire service whenever tbe public interest, in his judgment, shall require such discontinuance; but for a total discontinuance of service tbe contractor shall be allowed one month’s extra pay as full indemnity.
    “And it is further stipulated and agreed, that for a failure to deliver not beyond tbe control of the contractor, to delay or interfere with tbe prompt delivery of tbe mail at tbe post-office, mail stations, depots, and landings, or for carrying tbe mail in a manner different or inferior to that hereinbefore specified; for suffering tbe mails to be wet, injured, lost, or destroyed; for all or any of which tbe contractor shall forfeit a sum, in tbe discretion of tbe Postmaster-General, according to tbe nature and frequency of tbe delinquency.
    “And it is further stipulated and agreed, that tbe Postmaster-General may annul this contract for repeated failures; for violating tbe postal laws; for disobeying tbe instructions of tbe Post-Office Department; for refusing to discharge a carrier or any other person employed in tbe performance of service, when required by tbe Department; for transmitting commercial intelligence or matter that should go by mail contrary to tbe stipulations herein; for transporting persons so engaged as aforesaid; whenever tbe contractor shall become a postmaster, assistant postmaster, or member of Congress; or whenever, in tbe opinion of tbe Postmaster-General, tbe service can not be safely performed, tbe revenues collected, or the laws maintained.
    “And it is further stipulated and agreed, that such annulment shall not impair tbe right of tbe United States to claim damages from said contractor and bis sureties under this contract; but such damages may, for tbe purpose of set-off or counterclaim, in tbe settlement of any claim of said contractor or bis sureties against tbe United States, whether arising under this contract or otherwise, be assessed and liquidated by tbe Auditor of tbe Treasury for tbe Post-Office Department.
    “And it is hereby further stipulated and agreed by tbe said contractor and bis sureties that this contract may, in tbe discretion of tbe Postmaster-General, be continued in force beyond its express terms for a period not exceeding six months, until a new contract with tbe same or another contractor shall be made by tbe Postmaster-General.
    
      “And it is further stipulated that no Member of, orDelegate to, Congress shall be admitted to any share or part of this contract or to any benefit to arise therefrom.
    “And this contract is further to be subject to all the conditions imposed by law and 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 caused the same to be attested by the signature of the Second Assistant Postmaster-General, in accordance with the act of Congress approved March 3, 1877 (19 Stat., sec. 3, p. 335), and the said contractor and his sureties have hereunto set their hands and seals the day and year set opposite their names respectively.
    “ By order of the Postmaster-General.”
    III. At the date of said advertisement there existed in the city of New York certain branch post-offices, or so-called “mail stations,” designated as follows: (a) Branch L, situated at 119 Bast One hundred and twenty-fifth street, in that part of said city known as “Harlem;” (6) Branch R, situated at the corner of One hundred and fiftieth street and Third avenue, in that part of the city known as “ Morrisania; ” (o) Branch T, situated at the corner of Tremont and Railroad avenues, in that part of said city known as “ Tremont; ” which branch post-offices had been established as follows, to wit: Branch L prior to the year 1864, Branch R and Branch T prior to the month of April, 1875, and they had been in continual operation ever since said respective dates, and the mail service between said stations had been, ever since their said establishment and was, at the date of said advertisement, being performed by employés of the United States, over routes then known and designated as “ mail-messenger ” routes numbers 66358 and 66357, being part of what is called the “ designated mail-messenger service; ” this service was not then regarded by either party as part of the mail-station service on postal route 6997 designated in said advertisement. The designated mail-messenger service was performed on foot and with the aid of the elevated railway and the horse cars, and was paid out of the “ mail-messenger appropriation.” PlaintifPs route was known as “ Postal route No. 6997. ” The compensation was paid out of the “ star-route ” appropriation.
    IV. There also existed at the time of said advertisement and prior thereto a mail station (so called) designated as Branch E, situated at No. 112 West Thirty-third street, and there was then in existence, and had been prior to said advertisement, a mail service to and from said Branch E and the elevated railroad station at Thirty-third street and Sixth avenue, which service was known and designated as “mail-messenger route” No. 66356, and was then being performed, and had been performed ever since the establishment of said station, by em-ployés of the United States known as “designated mail messengers,” and said service was not accounted or treated as part of the service advertised for upon said postal route No. 6997.
    Y. At the date of said advertisement there also existed a certain mail route between the post-office in the city of New York and Staten Island known as “star route” No. 6151, for the transportation of mails from the post-office in said city, via Staten Island Ferry, to various points upon Staten Islaud, and said service was being performed by the “star route” contractor to whom the service on route No. 6151 had been let.
    YI. March 2,1885, the postmaster in New York was directed to establish a branch of his office in the Produce Exchange building. After correspondence between the Post-Office Department and the postmaster in New York mail service between the post-office and the branch wras established April 22, 1885. This branch was in the Produce Exchange building, corner of Whitehall and Stone streets, in said city, and was designated as Branch P. Upon the opening of said branch a mail-messenger route (No. 66695) was established between it and the post-office, the service being performed by employés of the United States under the authority of the Postmaster-General and pursuant to the estimates submitted for the establishment of said branch, and the disbursements authorized by the Postmaster-General for the establishment of that office; this service was being so performed by said employés prior to the commencement of the contract term on route 6997, and the contractor for said route for the period immediately prior to the 1st of July, 1885, was not required to, nor did he, perform the service between said branch and the post-office in New York City.
    YII. For some years prior to the advestisement set forth in finding i the post-office in the city of New York had been designated as an exchange post-office, for the exchange of mails with foreign countries; by the third article outlie Postal Union convention of Paris, of 1878, subsidized foreign vessels were accounted traveling post-offices of the country granting the subsidy, and were not under the control of the United States, and service between such ocean steamships and the post-office in the city of New York was not treated as part of the mail-messenger service in said city, but all such service had been performed and was then being performed by the steamship companies, and was at the date of the advertisement and since has been so performed, except as hereinafter set forth.
    YIII. Pursuant to paragraph 29 of the instructions to bidders, the plaintiff, bef&re submitting his bid, called upon the postmaster of the city of New York for information respecting the service called for under the advertisement hereinbefore referred to, and was by him advised that none of the service set out in the foregoing paragraphs was included in the service to be performed upon route 6997, but that all of the same was then in operation and being performed as hereinbefore set forth; the said postmaster instructed his subordinate officer in preparing the said advestisement to exclude therefrom all of the said service, which he did; neither the postmaster, the Second Assistant Postmaster-General, nor the plaintiff understood that any of the service in the foregoing finding which was then in operation and being performed by other means was intended to be included in the service advertised for to be performed on route 6997.
    IX. June 1,1885, the Second Assistant Postmaster-General addressed a letter to the postmaster of the city of New York, inquiring whether it would be practicable to supersede any of the service on “designated mail-messenger” routes 66354, 66355, 66356, 66357, 66358, and 66359, by the regulation wagon service on postal route 6997; this was done “with a view to embracing on route No. 6997 all service that can be properly performed by wagons.” June 4, 1885, the postmaster replied that it was practicable to substitute wagon service for mail-messenger routes numbers 66356, 66357, and 66358; thereupon the Postmaster-General discontinued the designated mail-messenger service on routes 66356,66357, and 66358, from and after June 30,1885, and directed plaintiff to make five trips per day each week day, and one'trip per day each holiday, from Station L via Station R to Station T; six trips per day each week day, one trip per day each Sunday, and two trips per day each holiday, from Station T via Station E to Station L, a distance of miles, from July 1, 1885, to June 30,1889; six trips per day each week day, one trip per day each Sunday, and one trip per day each holiday, from Station L to Station B from July 1, 1885, to June 30,1889, together with one additional trip each week day from July 1,1886, to June 30, 1889; five trips per day each week day, one trip per day each Sunday, and one trip per day each holiday, from Station E to Station L from July 1,1885, to June 30,1889, together with an additional trip each Sunday from November 1, 1885, and an additional trip each week day from July 1,1886, making a service claimed to be extra during the contract term of 29,729 trips, and to make fifteen trips per day each week day and three trips per day each holiday from Branch B to the elevated railway station at Sixth avenue and Thirty-third street, and the same number of trips per day from said elevated railway station to Branch E , from July 1,1885, to April 30, 1886, amounting to 7,710 trips, claimed to be extra.
    Eoute 66356 was from Station B to Thirty-third street station, elevated.
    Eoute 66357 was from Station L to Station E, service by horse car (fare paid by messenger).
    Eoute 66358 was from Station L, by Station B, to Station F and return, service by horse car (fare paid by messenger), except first trip north, which was by the New York and Harlem branch, New York Central and Hudson Eiver sailroads.
    X. June 19,1885, the postmaster of the city of New York wrote a letter to the Second Assistant Postmaster-General, advising him that the appointments of the “ designated mail messengers” carrying the mail on the route No. 66695, between the city post-office and the said Produce Exchange Branch, would expire on June 30, and, as their services were deemed essential to the conduct of business at the said branch, he requested their permanent appointment. June 22 the Acting Second Assistant Postmaster-General replied that “in view of the large amount for which route 6997 was let, it was deemed proper to require the contractor on said route to provide for said service.” June 23 the postmaster of the city of New York wrote a letter to the Second Assistant Postmaster-General, in which he called the latter’s attention to the fact of the inappropriateness and inadvisability of the exclusive employment of wagon service on said route No. 66695, tbe difficulties attendant upon sucb service, and suggested that at least one foot messenger be retained in said service. June 29 tbe Second Assistant Postmaster-General directed tbe postmaster to require the contractor on route No. 6997 to perform tbe mail service between tbe post-office and said Branch P on said route 66695, but to permit him to perform that service by foot messengers instead of in regulation mail wagons; thereupon an order was made requiring plaintiff to mate twenty-one trips per day each week day, two trips per day each Sunday, and six trips per day each holiday between tbe post-office and said branch, and thirty trips per day each week day, two trips per day each Sunday, and six trips per day each holiday between said branch and the post-office from July 1,1885, to June 30, 1889, making a service claimed to be extra during the contract term of 66,287 trips, which service, together with that set out in the preceding' paragraph, aggregated, during the contract term, 103,726 additional trips.
    XI. About January 12,1888, the Postmaster-General ordered plaintiff to make ten trips per day each week day between Branch L and the elevated railway station at One hundred and twenty-fifth street and Third avenue, and a similar number of trips daily between said elevated railway station and Branch L from January 12,1888, to June 30,1889, aggregating 9,000 additional trips under said order.
    XII. About June 29, 1886, the Postmaster-General ordered plaintiff to make two trips each week day and one trip each holiday on route 6062 between the post-office and Staten Island Ferry, and the same number of trips between Staten Island Ferry and the post-office from July 1,1886, to June 30, 1889, aggregating 1,855 additional trips, which plaintiff made.
    XTTT. About June 16, .1886, the Postmaster-General ordered plaintiff to carry Mexican mails from the general post-office in New York City to* the steamships of the New York, Havana, and Mexican Mail Steamship Company once a week from July 3,1886, to December 10,1889, aggregating 108 trips.
    XIY. Immediately upon receiving the said several orders and notices directing said services (claimed to be extra) to be performed between the points hereinbefore set out in findings ix to xiii, both inclusive, plaintiff protested to the postmaster in New York against the performance of said services as part of or under tbe terms of bis contract, and advised tbe postmaster that for tbe performance of sncb service plaintiff would demand reasonable compensation. A written protest was sent by bim to tbe Post-Office Department against tbe decision requiring bim to debver mails to tbe New York, Havana and Mexican Steamship Company.
    XY. Plaintiff performed tbe service set forth in tbe advertisements, tbe service admitted to be new or additional, and tbe service claimed to be extra during tbe entire term of tbe contract, to wit, from July 1,1885, to July 1, 1889, and during that period was forced by increase of service to add to bis equipment 56 horses and corresponding wagons and harness. The trips claimed to be extra amounted to 133,785.30 miles.
    Between branch post-office stations L, B, and T, trips. 6,159
    Between branch post-office stations T, B, and L, trips. 7,621
    Between branch post-office stations L and B, trips. 8,495
    Between branch post-office stations B and L, trips. 7,454
    Between branch post-office station L and the elevated railroad at One hundred and twenty-fifth street and Third avenue, trips_ 4,500
    And return, trips. 4,500
    Between station E and the elevated railroad, Sixth avenue and Thirty-third street, trips.,. 3,855
    And return, trips.‘. 3,855
    Between the genoral post-office and station P, trips. 26, 350
    Between station P and the general post-office, trips. 39,937
    Between the general post-office and the Staten Island Ferry, trips. 1,855
    And return, trips. 1,859
    Between the post-office and the New York, Havana and Mexican Mail Steamship Company, trips. 108
    And tbe said service was reasonably and fairly worth tbe sum of $46,580. In this sum is not included any allowance for tbe service between tbe post-office and tbe Staten Island Ferry, claimed to be extra; tbe reasonable value of that service was $1,114.
    These sums also substantially conform to tbe contract rate.
    
      Mr. John G. Fwy for tbe claimant:
    Tbe claimant contends that when be contracted to carry tbe mail on postal route 6997 for $165,000 per annum be meant that exactly. Tbe United States contends that when they advertised for service on that route and contracted to pay $165,000 per annum for service on that route tbe contract meant that tbe claimant should not only carry tbe mail on route 6997 for $165,000 per annum, but tliat, in addition thereto, be should carry tbe mail on mail-messenger routes 66354,66355, 
      66356, 66357, 66358, 66359, and 66695, star route 6151, and to tbe steamships for nothing; that is, that he should be paid for carrying the mail over one route, but that over the other nine routes, which were then in operation and being paid for to other parties, he should carry the mail for nothing.
    The subj ect-matter of this contract was the “ regulation-wagon service,” not the “foot-messenger service,” or “the steamship service,” or the “star-route service.” One of the specific provisions of this contract which sheds light upon its construction is that one which, with a labyrinth of detail, provides for the style of wagon to be used, the character of horses and of harness, and even the age and morals of the driver.
    The language of the tenth article of the contract provides for the carriage of mails, without farther compensation, of all new or additional service. The mail service that had been in operation since the administration of Postmaster Wakeman, whose term of service expired in 1864, could hardly be called new service in 1885. That service was then of full age; if a service twenty-one years old is to be embraced in the term “ new,” the contract should be relegated to the days of Methuselah; it has no right to be alive awaiting a construction in the year of grace 1891.
    This service, then, could not be embraced under the term “new.” A moment’s examination will demonstrate that it is not covered by the word “additional.”
    It is a maxim in the construction of contracts that phrases that bear particular meaning with reference their subject-matter shall take their “trade” meaning in their construction. There is hardly an occupation in which there are not certain words that have attained specific signification which same words have other meanings with reference to other matters, and the question simply is, did the words “additional service on route 6997” mean the increase of the tonnage of the mail, or the abolishment of nine other separate and distinct routes of other departmental classification and the loading of the service performed on those routes upon route 6997 ? These words had a particular significance in post-office parlance and when they were used they were intended to bear the meaning that they had so acquired. (Otis v. U. 8., 20 C. Cls. B>., 328.)
    The authorities upon this question are numerous and uniform. (See Conover v. War dell, 20 N. J. Eq., 266; Haddoclc v. 
      Woods, 46 Iowa, 433; Pilmer v. Banks, 16 Iowa, 321; also, 29 Iowa, 501; Thorington v. Smith, 8 Wall., 1;. Wilder v. I)e Oon, 26 Minn.., 10.)
    Nobody pretends that attbetime the advertisement was put out and tbe contract made there was even larking in the innermost mind of any person that bad any connection with it that it was the object, purpose, or intent to embrace any of the service then being performed by other means and on other routes. This is made so clear by the testimony that it is beyond all question and all cavil. It was not until June 1, 1885, nine months after the advertisement and a new and inexperienced man had been inducted into office, that, regardless of contract obligations or of right, the then Second Assistant Postmaster-General wrote the letter found on page 38 of the record to the postmaster of the city of New York inquiring, not whether it was just, not whether it was honest,- not whether it was within the understanding of the parties, but whether it was “ practicable to supersede any of the following routes by the regulation wagons on route 6697.”
    
      Mr. F. P. Dewees (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    , The legal propositions, urged with great force in plaintiff’s brief, as generalities are not disputed — surrounding circumstances, subject-matter, language, effects, and consequences are all to be considered in the construction of a contract. It is not denied that phrases or words, in reference to the subject-matter, should have the trade-meaning definition. Nevertheless it is claimed that law and custom warranted the Post-Office Department in superseding mail-messenger service with wagon service in a proper construction of the contract.
    The primary object of the contract was to carry all the mails in New York City that could be properly carried in wagons. Where the amount of mail matter will justify it, wagon service in a large, crowded city is preferred. The justifiable wagon service in New York City, owing to its rapid increase, could not be scheduled fully in an advertisement made out for a four-year contract, to commence nearly a year thereafter.
    Guided by the advertisement, it is stipulated in the contract that, without additional compensation, the contractor must perform “all new or additional mail-messenger, transfer, and mail-station service that the Postmaster-General may direct; that foreign mails in transit should be regarded as mails of the United States; that the Postmaster-General may change the schedule and termini of the route, increase, decrease, or extend the service without change of pay.”
    The power given by the contract to change the advertised schedule by the Postmaster-General was practically unlimited. That the service would be extended beyond such schedule was fully understood. In making an estimate of what such increase would be, the increase under the preceding contract would naturally be first referred to by the contemplating bidder. Such increase between 1881 advertisement and 1881 advertisement has been shown to be 210,912.46 miles. It would be reasonable to suppose that the succeeding contract would have at least the same percentage of increase. Yet, including what is called extra service by the plaintiff, the increase in 1888 over 1884 was only 211,329.56 miles.
    The amount of service imposed upon the contractor was not greater than might naturally be expected. The claim for extra service is therefore entirely a technical one.
    But it is submitted that as a technical claim it is without merit. “New” service does not mean new postal service. Having reference to the subject-matter of the contract, it means new mail messenger and wagon service. If the size of the mail or the character of the service was sufficient to warrant wagons, then such service was preferred. Therefore it was that the Assistant Postmaster-General inquired whether it was practicable to supersede routes 66354, 66355, 66356, 66357,66358, and 66359 by regulation wagon. The postmaster of New York recommended that there should be no change in routes 66354, 66355, 66359, but reported that wagon service could be substituted uuder the new contract on 66356, 66357, 66358. When the change was made, it was for the reason that the growth of the business rendered such change necessary.
    The carriage of mails under the contract, without protest and in pursuance of the direction either of the Post-Office Department or the postmaster of New York City, must be regarded as acquiescence by the contractor in the construction of the contract by the Department and as an estoppel to all claims for extra service.
    Certain work in carrying the mails was imposed upon the contractor of route 6997 as new or additional work referred to in the contract. If the contractor regarded such work as extra and not embraced in the contract, it was his duty either to refuse to perform the same, or by legal notice to the proper parties declare his intention to perform the work and to require additional pay therefor.
    Such notice and intention were given in the matter of carrying the mails from the Mexican steamer, but in no other case.
    In Hawkins’s ¡Case (12 O. Cls. R., 181; 96IJ. S. R., 689) there was no question but that the work required by the Government agent was different and more expensive than that required by the contract; nevertheless it was held that the claimant could not recover, because he had not first procured the consent of the Secretary or at least notified him of the change of plan and the additional expenses.
    Even when the agent of the Government is authorized to make the request, and makes an order for extra work recognized as not embraced in the express contract, if it is of such a nature that he may reasonably suppose no additional expense is required, the contractor must speak, or he will be deemed to have consented to the substitution at the contract rate. (.Ford’s Case, 17 C. 01s. R., 60.)
    The spirit of the case last cited applies to the present case. The additional service was required as coming under the express terms of the contract. It was so ordered and it was so executed without any claim of payment for extra service made by the contractor, the only exception being that of the steamship mail and the conversation of Mr Woolverton and Mr. Pearson as to L, R, and T, when the contractor was virtually informed that if he desired to give notice it should be to the Department.
    When there is ambiguity in a contract, the accepted meaning of both parties often governs its construction. Acquiescence or want of protest of one party concedes the construction of the other to be correct. (2 Pars, on Oon., p. 937-938, n,, r., and s.) . The importance of a protest is manifest; it puts the party notified on guard. It may control his actions and govern his expenditures. The general principle is, he who holds his peace when he ought to have spoken shall not be heard at a time when he ought to be silent. (Bit. U. S. v. Lee, 13 Pet. 107; Erwin v. Lowrey, 7 How., 132.)
    
      Tbe construction by tbe Post-Office Department of tbe contract for route 6997 was (June 1,1885) that it was “for tbe performance of all station and transfer required” (Bee., p. 38). In accordance with sucb construction tbe subsequent orders complained of were made. Tbe contractor performed tbe work without objection to tbe proper parties.
   Davis, J.,

delivered tbe opinion of tbe court:

We are again required to mark tbe distinction between “new or additional” service and “extra” service under a “ mail-messenger ” contract. A similar point was presented in the case of Otis v. The United States (20 C. Cls. R., 315), where this court held that “new” service “was service similar in its nature to that embraced in tbe general intent of tbe contract, * * * while £ additional’ service was to be an increase of the service which tbe contract as a whole contemplated.” That case was affirmed upon appeal (120 U. S. R., 115). In tbe case at bar we find plaintiff to be contractor for substantially tbe same service as was Otis in tbe earlier case, that is, for tbe “mail-messenger ” service in tbe city of New Y ork upon tbe route bearing tbe number 6997. Plaintiff, like Otis, has been required to perform service which be alleges is “ extra,” and which tbe Post-Office authorities bold to be “new or additional.” To recover pay for tbe alleged “extra” service this action was begun.

Plaintiff’s counsel thus state their position:

“None of the new service established, and none of the additional service arising on route 6997, as described in tbe advertisement, is sought to be recovered in this suit; all of that was embraced m tbe terms of tbe contract; and whether tbe contract was a gaining or losing one, tbe claimant has no complaint against tbe United States; but for tbe extra service— that which, in tbe contemplation of tbe parties, never entered into tbe contract; that winch was neither new nor additional; that which was in operation on other routes by other means, and which was not specified or referred to in tbe advertisment, * * * is tbe service for which we are claiming.”

It should be remarked, before we preceed to examine the various items of this claim, that none of tbe service for which compensation is now asked was at the date of the advertisement and contract being performed, over postal route No. 6997.

The tenth paragraph of the contract required the contractor “to perform all new or additional mail-messenger, transfer, and mail-station service that the Postmaster-G-eneral may order at tbe city of New York during tbe contract term without additional compensation.”

What, then, is “new or additional service” within the meaning of the contract? It certainly is not service differing in kind; but the service complained of as extra did not upon its face differ in kind from that usually required from a mail-messenger contractor; yet this service never had been performed by the contractor on this route, but had always been performed by other means.

The Supreme Court has instructed us “that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.” (Merriam v. United States, 107 U. S. R., 441.)

In the case cited the contract contained a clause by which the plaintiff was to furnish a named quantity of oats, “more or less;” and as the quantity required was greater than that named he claimed the right to furnish it, i. e. the full amount needed; the defendants, however, elected to take the oats under another and lower contract, a contract precisely similar in phraseology to Merriam’s. The Supreme Court examined the circumstances under which the bids were made and the were opened, and held:

“It is perfectly clear, from these circumstances, that the officers of the United States who had this matter in charge did not understand the contract with appellant as he now claims to construe it. * * * These facts being known to the appellant, he could not have understood the contract sued on, which rvas made on the same day as the contract with Hall, as he now contends it should be interpreted.”

In Gibbons v. The United States (15 C. Cls. R., 174) this court, in construing a building contract, held:

“In construing a disputed clause of a contract three things should be considered: (1) The circumstances in the light of Avhicli the contract Avas made; (2) the general purpose of the contract and of other provisions directly or indirectly affecting the clause under consideration; (3) the language and effect of the clause itself.”

This case was affirmed upon appeal (109 U. S. R., 200), when Mr. Justice Matthews, avIio delivered the opinion, said:

“But without going into any refinements of merely verbal interpretations, we think the meaning of the parties, explained by tbe circumstances attending tlie transaction, is sufficiently plain, and determine satisfactorily tbeir relative rights and obligations.”

Following the rule thus laid down in Gibbons’s Oase, we must (1) examine “the circumstances in the light of which the contract was made.”

At the date of the advertisement and the contract there ex-existed in New York City the following classes of messenger service: (a) The letter-carriers. (&) The service called the “designated mail messengers.” These messengers were em-ployés of the Post-Office Department, and, on foot and by use of the elevated railroad or the horse cars, they carried mail between the branch post-offices and the central post-office. (o) The mail-messenger service strictly so called; that is, the service this plaintiff contracted to perform.

The services which form the basis of this litigation (except the íátaten Island service and the Mexican steamship service) were being performed, when this contract was made, by the Government employés called “designated mail messengers,” and had been performed by them alone prior to the contract and to the date of the advertisement pursuant to which the contract was made. These services had never been performed by the contractor for the “ mail-messenger” (or wagon) service.

The “designated mail-messenger service” was in its essence a foot service, paid out of the “mail-messenger appropriation,” and the service could be terminated at any time, as in the case of other Government employés. Plaintiff’s service was in its essence wagon service, and was paid for out of the “ star-route? appropriation. It was duly advertised according to law, substantially as other star-route contracts, and let to the lowest bidder for the term of four years. Some of the routes later assigned to plaintiff (and as to which complaint is now made) were known when the contract was made as “mail-messenger routes” number 66354 (and so on), while plaintiff’s route was known, not as a “mail-messenger route,” but as “postal route No. 6997.” Of course these facts were necessarily known to the postal officers, and it is not shown that the mail of designated mail-messenger routes has ever before this instance been transferred to the contractor for wagon service.

(2) “The general purpose of the contract and of other provisions directly or indirectly affecting tbe clause under consideration.”

Tbe general purpose was “ wagon” service, not foot serviec. Tbe contract was for one specific route, No. 6997, “being tbe mail-messenger and transfer service at tbe city of New York; ” tbis service was to be performed “ in tbe wagons hereinafter described;” tbe contractor pledged himself “to carry said mail, using therefor wagons of tbe kind ” described in tbe contract, and “ in suffiicent number to transport tbe whole of said mail, whatever may be its size;” tbe mail was tobe carried “in substantial one or two horse wagons, of sufficient capacity for tbe entire mail; ” tbe style of tbe wagons was described in ample detail; tbe contractor was to “furnish the number of regulation wagons that, in tbe opinion of tbe postmaster at New York, will be sufficient for tbe prompt and proper performance of tbe service, including [necessary] extra wagons;” each driver was required to wear a cap or bat of prescribed pattern; in short, every clause of tbe contract shows that wagon service alonewas contemplated by tbe parties, not foot service, whether theretofore performed by letter-carriers or by “designated mail messengers.”

(3) “Tbe language and effect of tbe clause itself.”

The clause of tbe contract in dispute is tbe tenth. It requires tbe performance without additional compensation of service which was “new” or of service which was “ additional,” but also tbis service must be new or additional — not mail service generally — but “mail-messenger, transfer, and mail-station service” in New York. Some of tbe service in issue bad been performed since 186á by Department messengers, some by tbe steamship company, some by another star-route contractor; tbe service so existing prior to tbe contract’s date could not thereafter become “ new.” As to “additional service,” we have already said “ that it must be an increase of tbe service which tbe contract as a whole contemplated ” (supra); we do not think that a fair construction of tbis word “additional” would transfer to tbe wagon service, service already in existence, performed under other regular route numbers, paid out of other appropriations, and performed upon tbe elevated railroad trains, in horse cars, or on foot, or service theretofore performed by a foreign steamship company under a treaty provision.

In this view of the case it becomes unnecessary to examine the understanding at the date of the contract of the Government officers and the plaintiff as to its intent. The plaintiff will recover for the service performed by him from branch stations which service had prior to his contract been performed by “designated mail messengers.” He will recover for service between the Mexican steamship wharf and the post-office, which service had previously been performed by the steamship company. He will not recover for increased number of trips between the post-office and Staten Island Ferry, as that service was properly “ additional ” to that he was pledged to perform “to the Staten Island Railroad Ferry, foot of Whitehall street, Hew York, Staten Island Railroad.” (See schedule in advertisement.)

Judgment for plaintiff in the sum of $46,580.

Peelle, J., took no part in the decision, the case having been argued before he took his seat.  