
    Pacific Mail Steamship Company v. The United States.
    
      On the Proofs.
    
    
      The ease is tried in 1878, and judgment is rendered for the claimants, no opinion being delivered by the court. (13 C. Cls. R., p. 581.) Both parlies appeal. The judgment against the defendants is affirmed, but the Supreme Court directs this court to award judgment for an additional amount in favor of the claimant. The ease is resubmitted on an agreed statement of fact, by ivhich it appears that one of the claimants’ steamers did not start on her trip until thirteen days after the appointed time, and that the mails were carried from Japan to JTong-Kong in another and unaccepted vessel. The Postmaster-General imposes a conditional fine on the claimants for the delay, to be deducted from the judgment, if one be rendered.
    
    I. Where the former findings of this court show that a certain vessel did not start with the defendants’ mails on the appointed day, hut the Supreme Court, nevertheless, hold that the claimants may he entitled to recover for the voyage, that objection cannot he raised in this court on a second trial.
    II. Where the contract was to carry the mails in certain accepted vessels from San Francisco to Hong-Kong, touching at Japan, and the claimants carry them to Japan and then forward them inan unaccepted vessel, and the Post-Office Department treat the service as done wholly hy an accepted vessel, this court will not stretch the language of a mandate of the Supreme Court so as to defeat a recovery for the voyage against the equity of the case.
    III.Where the Postmaster-G-eneral orders that in case judgment he rendered in favor of the claimants, for the disputed trip of a steamship, a fine he imposed on the claimants (pursuant to authority given hy the contract), the court cannot recognize the fine as existing and deduct it from the judgment.
    
      The Reporters, statement of the case:
    The facts sufficiently appear in the following findings and in the opinion of the court:
    In accordance with the mandate of the Supreme Court, the Court of Claims has inquired into deductions for non-perform-.anee of duty or other matters provided in the contract set forth in the claimant’s petition, in regard to which no finding has been made by this court, and now find the facts relating thereto to-be as set forth in the following agreed statement of facts, and the communication from the Postmaster-General annexed thereto and referred to therein.
    “COURT OF.CLAIMS, DECEMBER TERM, 1880.
    “The Paoieic Mail Steamship Co. rs. “The United States.
    “ It is agreed that the above case be submitted under the mandate and opinion of the Supreme Court herein on the following facts, which so far as they may affect or modify any facts heretofore found by the court are agreed to be in addition to or in substitution therefor.
    “ Steamships which had been accepted under the first contract for the transportation of the mails made trips outward from San Francisco carrying the United States mails as follows:
    “The China left San Francisco October 16,1873.
    “The Japan “ “ “ November 17,1873.
    “The Colorado “ “ “ February 14, 1874.
    “The Alaska “ “ u April 18, 1874.
    “The Japan “ “ u June 13, 1874.
    “The Japan “ “ “ . August 29, 1874.
    “That all of said voyages or trips were made to Hong-Kong via Yokohama and return to San Francisco except that of the Japan, which left San Francisco August 29,1874. On that trip the Japan sailed only to Yokohama, arriving there September-23d, and sailing thence on September 28th for, and arriving at, San Francisco on October 21st, 1874.
    “The mails carried outward by the Japan on this trip were taken from Yokohama to Hong-Kong by the steamship Nevada, which sailed from Yokohama September 24th and arrived at Hong-Kong October 1st, 1874, and the Japan on her return from Yokohama brought the mails which had been forwarded from Hong-Kong by the steamship Costa Pica on the 19th of September, 1874.
    “The steamships Nevada and Costa Rica were extra steamers of the plaintiff which had not been accepted by the Post-Office Department under either contract.
    ■ “Thetripof the steamship Japan, which beganfrom SanFran-cisco August 29th, 1874, succeeded a trip made by the steamship Colorado, which left San -Francisco on August 13th, and by agreement was credited by the Post-Office Department to the first contract as in completion of the trip of the Alaska, which left San Francisco July 25 th, 1874, and in consequence-of an accident at Hong-Kong was nnable to complete ber trip,, and ber mails were brought by tbe Colorado.
    “Tbe Postmaster-General bas entered an order herein in tbe terms set forth in tbe annexed communication.
    “ Tbe claimant bas been paid as sea postages five hundred and forty-nine -fif- dollars -for transportation of mails by tbe China ' on tbe trip of October 17th, 1874, and tbe Japan of November 17th, 1874, before mentioned.
    “J. F.Farnsworth,
    “ Attorney for Plaintiff. “Thomas Simons,
    “ Ass’t Att’y General.”
    After tbe case was submitted tbe following letter was received from tbe Postmaster-General:
    / “Post-Ofeice Department,
    - “ Washington, I). 61, May 17,1881.
    “ To the honorable the Justices of the Court of Claims:
    
    “ I hereby respectfully inform tbe justices of tbe Court of Claims that I have this day made tbe following order concerning tbe matter pending, on mandate of tbe Supreme Court, in tbe Court of Claims in tbe suit of tbe Pacific Mail Steamship Company for compensation for postal service between San Francisco and Hong-Kong, China, via Yokohama, Japan, under contract with this department of 23d August, 1873, viz:
    “‘In case tbe Court of Claims, in rendering a judgment in conformity with tbe opinion of tbe Supreme Court of tbe United States in tbe matter of tbe claim of the Pacific Mail Steamship Company vs. tbe United States, on cross appeals from tbe judgment of tbe Court of claims (Nos. 201 and 202, October term, 1880), shall bold that tbe trip to Yokohama and return, which was commenced at San Francisco, by the steamship Japan, on 29th August, 1874, is to be accepted as having been performed under the contract of 23d August, 1873, for tbe additional monthly service between San Francisco and Hong-Kong via Yokohama, it is ordered that a fine of thirteen thousand dollars ($13,000), being at the rate of one thousand dollars for every twenty four hours’ delay in tbe departure of said steamship from San Francisco (which occurred 13 days after the sailing day fixed by said contract), be imposed on account of said delay; and tbe Court of Claims advised thereof for such action as shall be deemed proper by tbe said court.
    “Thomas L. James,
    “ Postmaster- General.”
    On'the foregoing facts tbe court decided as conclusion of law in regard to tbe trip which began with tbe sailing of the steamer Japan from San Francisco on the 29 th clay of August, A. D. 1874, that the claimants were entitled to recover for the same the sum of $41,666.66 as a trip performed in an accepted vessel under the contract, without any deduction therefrom by reason of the alleged fine imposed by the Postmaster-General; and that the defendants should be allowed the sum of $649.36 in making up the judgment in this suit, the claimants having already received that sum for sea postages from mail matter carried under the contract in suit.
    
      Mr. Farnsworth for the claimant.
    
      Mr. Assistant Attorney-General Simons for the defendants.
   Davis, J.,

delivered the opinion of the court:

This suit is brought to recover for mail service performed in thirteen round trips between the United States and China. The contract price per trip was $41,666.66.

At the trial in the December term, 1877, the court found that six trips were performed in wooden vessels which had been accepted by the United States under a former contract, six trips in wooden vessels which had not been so accepted, and one in an iron vessel accepted under the contract sued on. The court held that the claimants could not recover for any of the trips in the wooden vessels, but gave judgment for the one performed in the City of Peking, an iron vessel.

The case was taken to the Supreme Court on appeal. Our judgment was in part reversed there, and we are now called upon to execute the mandate.

The mandate directs proceedings to be had “ in conformity with the opinion and judgment” of the appellate court. That opinion says: “As regards the sum allowed claimant for the voyage of the City of Peking we think the Court of Claims was clearly right.” That is, therefore, no longer in dispute.

The opinion also says : “ The Court of Claims finds that the .additional mail service was performed by twelve round trips, beginning October 17, 1873, and terminating January 16, 1875, and that of these voyages six were made by ships which had been accepted under the first contract, and six by vessels which had never been accepted by the Postmaster-General. We are of opinion that claimant can only recover on this contract for the service rendered by vessels which had been accepted under the contract.” The service rendered in the six trips by unaccepted vessels is therefore likewise no longer in dispute.

The government concedes that the mandate entitles the company to recover for five trips in the accepted vessels. This leaves in dispute only the trip of the Japan, which left San Francisco August 29, 1874.

The opinion of the Supreme Court clearly recognizes this trip as one of those which are to be paid for; but it adds: “ There may be deductions for non-performance of duty, or other matters provided in the contract, in regard to which no finding is' made by the Court of Claims, but which will be open to inquiry on the return of the case to that court.” Our power of action in the premises is thus limited to deductions from the contract price of the trip by reason of, first, non-performance of duty; and, second, other matters not provided in the contract. On both these points we may make further inquiries, except so far as precluded by facts already found. The parties have made an agreed statement on these points, which we have incorporated in our findings as a fact.

This statement shows that there was a delay of thirteen days in the time of starting the trip. It also shows that the Japan made only a portion of the round trip. She went only to Yokohama. The mails for that trip between that port and Hong-Kong, both ways, were carried by unaccepted vessels. The defendants contend that each of these facts amounts to a substantial variation from the contract, and takes the trip out of its operation.

The former findings showed the day of the starting of the Japan on the disputed trip. The mandate leaves us no power to make a deduction for non-performance of duty or other matter in the contract, in regard to which a finding had been already made.

The second objection raises a more difficult question. The contract was to carry the mails between San Francisco and Hong-Kong; touching at Japan with mails. As interpreted by the Supreme Court, it was a contract to carry them in part in seven side-wheel steamships which had already been constructed by the company, and inspected and accepted by the government. The disputed carriage was made to and from Japan in one of the accepted vessels. For some unexplained reason it was made between Japan and Hong-Kong in unaccepted vessels. If we assume that there was no good reason for the fail-, ure, and that the substitution of the unaccepted vessels was an arbitrary act, it follows that the company was in fault.

On the other hand, it is plain that the government got in substance all it bargained for, except in the matter of the time of starting, which we have already disposed of. The company carried the mails to Hong-Kong in a safe and secure manner, and employed in doing it one of the specially constructed vessels. If it was the object of the government in contracting for a particular kind of vessel to secure the safe transportation of the mails, that object was accomplished. If it had in view the construction of vessels of that kind in the mercantile marine, that end also was gained. We are not prepared to say that no circumstances could arise which would relieve the claimants from performing the'whole trip in accepted vessels, or which would warrant the Postín aster-General in accepting a part performance in an accepted vessel as a whole performance, or which would require the court to so regard it.

It is plain from all the facts that the voyage was and still is treated at the Post Office Department as performed in an accepted vessel. They show no equitable reason for stretching the authority conferred upon us by the mandate. The Supreme Court, as we have already pointed out, authorizes us to make further inquiries as to matters “ in regard to which no finding was made,” and further says that the Court of Claims finds that * * of these voyages, six were made by ships which had been accepted.” Under the circumstances we hold ourselves bound by the literal language of the appellate court.

On the 17th day of May, 1881, the Postmaster-General ordered that in case judgment should be rendered in favor of the claimants for the disputed trip, a fine of $13,000 for thirteen days delay in starting be imposed upon claimants. The Attorney-General contends that if we find for the claimant as to this voyage the amount of the fine should be considered in making up the judgment.

This cannot be done, for two reasons: 1st. The reason already given that the mandate leaves no power to make deduction for non-performance of duty or other matter in the contract, in regard to which a finding of facts has already been made. 2d.

The order on the face purports to bave no effect until our judgment is entered, and therefore cannot be considered in making it up. It may be a proper matter for consideration at the Treasury' when the judgment is presented for payment, but cannot be entertained here. If it has any force in this court it •can only operate as an estoppel to prevent ’the government from setting up that the voyage was not performed under the contract.

The judgment of the court is that the claimants do have and recover of the Uuited States the contract price for seven round trips, as follows : For the trips commencing October 16, 1873, November 17, 1873, February 14, 1874, April 18, 1874, June 13, 1874, August 29, 1874, aud February 20, 1875, less the sum of 8549.36, already received by the claimants, being the sum of two hundred and ninety-one thousand one hundred and seventeen dollars and thirty cents ($291,117.30).  