
    THE ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. THE UNITED STATES.
    [No. 18557.
    Decided. October 25, 1897.]
    
      On the Proofs.
    
    Claimant- carries the mails by ferry 6 miles beyond the point provided irt its contract without compensation, but with the knowledge and consent of the defendants.
    
      I The ordinary rule between individuals as to compensation under an implied contract is modified in mail contracts by the Act August 3, 1883 (22 Stat. L., 216), limiting the compensation for extended service to “not exceeding pro rata additional pay for any distancenot exceeding 25 miles.”
    
    II. Where a railroad company carried the mails 6 miles, by ferry, beyond its contract route without a separate agreement, its service must be considered as an extension of its existing mail-route contract at the same rate.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court r
    I. The claimant is a corporation duly chartered and organized in January, 1891, under the laws of the State of Missouri, and as such corporation it did, from May 18,1891, to July 1, 1891, under a contract with the United States and for a compensation of $77.81 per mile per annum, transport the United States mail between Birds Point, in Missouri, and Texarkana, in Arkansas, a distance of 418 miles, over a railway that was its own, forming at that time mail-contract route No. 145051.
    II. From July 1, 1891, to and including December 31, 1894, the claimant, under like agreement, transported the United States mails over same route, between the cities mentioned,, for a compensation of $117.14 per mile per annum.
    III. No claim is hereby made for compensation for said service, the same having been paid in full.
    IY. From Birds Point northwardly the mail service beyond the route aforesaid (connecting as well with other railway routes which from a westwardly direction reach the Mississippi Eiver at Birds Point) is continued across the Mississippi Eiver northwardly, and vice versa, to and from the town of Cairo, in Illinois, and beyond Cairo by other routes.
    Y. In connection with the said line of railway, during the whole of the said period (May 18,1891, to December 31,1894), the claimant, in conjunction with other railway companies similarly situated as above, maintained and operated a ferry service between Birds Point and Cairo — that is, for a distance of 6 miles, and all railway cars, mail and other; that during the same period passed northwardly or southwardly over route No. 145051 passed continuously in connection therewith to and from the said ferry as well, the mails being transferred in cars on ferryboats without transshipment, and being all the while received and delivered in due course by and to the claimants and, vice versa, post-office agents of the United States at Cairo without objection from either party.
    YI. The ferry services rendered by the claimant were necessary to the purposes of the defendants in transporting their mails, and no compensation has been made therefor.
    YII. The average cost per mile to the claimant of operating its railway, exclusive of interest on the cost of the road and equipment, between Birds Point and Texarkana from May 18, 1891, to January 1, 1895, was substantially as follows:
    May 18,1891, to June 30,1891. $481.27
    July 1,1891, to June 30,1892 . 3, 077.78
    July 1,1892, to June 30,1893. 3,453.89
    July 1,1893, to June 30,1894. 3,133.06
    July 1,1894, to December 31,1894. 1,567.87
    YIII. The average cost per mile to the claimant of operating the ferry between Birds Point and Cairo from May 18, 1891, to December 31,1894, was as follows:
    May 18,1891, to June 30,1891 . $2,123.67
    July 1,1891, to June 30,1892 . 11, 079.32
    July 1,1892, to June 30,1893 . 9,621.75
    Jiily 1,1893, to June 30,1894 . 7,008. 62
    July 1,1894, to December 31,1894. 4,969.38
    IX.The ratio of claimant’s expense, as above, per mile of ferry, to that of its expense, as above, per mile of railway, from May 18, 1891, to December 31,1894, expressed decimally, is as follows:
    May 18,1891, to June 30,1891. 4.413
    July 1,1891, to June 30,1892. 3. 600
    July 1,1892, to June 30,1893... 2.786
    July 1,1893, to June 30,1894. 2.237
    July 1,1894, to December 31,1894. 3.170
    X. The total length of the roads owned by the claimant is 1,223 miles, and the cost to the claimant of these roads and their equipment was $64,500,000.
    XI. Before' May 18,1891, the mails between Cairo and Tex-arkana were carried by the claimant’s predecessor in title, the St. Louis, Arkansas and Texas Eailway Company, and in February, 1887, that company filled out a distance circular stating Cairo as a terminus of the mail route, but in payments Birds Point was treated as the terminus.
    XII. On April 12, 1888, the defendants proposed to the St. Louis, Arkansas and Texas Eailway Company to extend the route from Birds Point to Cairo at the same rate per mile as between Texarkana and Birds Point, and since tbe route has been operated by tbe claimant tbe defendant bas always been willing to extend tbe route at tbe same rate.
    XIII. Since January 1,1895, tbe route bas been extended to Cairo, tbe portion between Birds Point and Cairo being paid for at tbe same rate as tbe balance of tbe route.
    XIY. At tbe same rate per mile between Birds Point and Cairo as that contracted for and paid over tbe balance of tbe claimant’s line there would be due tbe claimant tbe following-sums:
    Six miles, at $77.81 per mile per annum from May 18,1891, to June 30,1891. $57.06
    Six miles, at $117.14 per mile per annum from July 1, 1891, to December 31, 1894. 2,459. 94
    Total. 2,517.00
    
      Mr. F. JD. McKenny (witb whom was Mr. 8. F. Phillips) for tbe defendants.
    It is submitted that tbe claimant is justly entitled to pay for mail service, performed during tbe period in question, over tbe 6-mile ferry betwixt Birds Point and Cairo,- and likewise that wbat is due to it upon that account is so due upon an implied contract for work an d labor done. Upon tbis point, if authority be needed, we refer to the case of United States v. Wilkins, 6 Wheat., 135 (A. D. 1821).
    Tbe contract witb Wilkins provided that he should receive “for every completed ration issued at tbe Chickasaw Bluffs, at Nashville, etc., 14 cents,” and “for every completed ration issued at any place in tbe Chickasaw or Choctaw country, etc., 18J cents,” and that “should any rations be required at any places, etc., not specified in tbis contract, tbe price of tbe same shall be hereafter agreed on betwixt tbe public and tbe contractor.”
    Upon tbe question as to wbat was due for rations under tbis last clause above, tbe court said, page 143:
    “If there be no specific price agreed upon in the contract for rations issued at any place, tbe contract leaves tbe price to be adjusted by tbe Government and tbe contractor’. It is to be tbe joint act of both parties, and not tbe exclusive act of either. If they can not agree, then a reasonable compensation is to be allowed, and that reasonable compensation is to be proved by competent evidence and settled by a jury, as in common cases, and tbe defendant upon sucb a trial is at liberty to show that tbe sum allowed liim by tbe Secretary of War is not a reasonable compensation.”
    It is submitted that tbe present case is governed by tbe rule thus expressed, for no question is made or can be made that tbe contract here implied by law is not substantially tbe same as that which is to some extent expressed there. In both cases tbe rate of pay is left to future adjustment — i. e., either by the parties, or if they fail to agree, then by a court upon the suum unique tribuere principle — i. e., in common-law language, upon some appropriate common count, and also in tbe same way as if tbe issue were betwixt private parties.
    It is further submitted that where, in a general contract embracing various items of service, tbe parties have agreed expressly upon a rate of compensation for certain items and have left sucb rate unexpressed as to others, all sucb items in tbe meanwhile differing with one another in substance only in respect to tbe expense to which tbe party who is to do the service will necessarily be put for tbe one and for tbe other, it is plainly ex sequo et bono that tbe unascertained rate of pay should bear a proportion to that agreed upon in the ratio of tbe several rates of expense incurred thereabouts.
    
      Mr. Charles G. Binney (with whom was Mr. Assistant Attorney-General Bodge) for tbe defendants.
   Peelle, J.,

delivered tbe opinion of tbe court:

Tbe only question presented is as to what compensation tbe claimant is entitled for transporting tbe mails by water — by way of ferry — between Birds Point and Cairo, a distance of 6 miles. Tbe claimant’s contract for transporting tbe mails terminated at Birds Point, no provision being made for tbe ferry service across tbe Mississippi River from that terminal point to Cairo.

Tbe ferry service was necessary to tbe purposes of the defendants in transporting tbe mails, and tbe same was performed by tbe claimant, as set forth in tbe findings, from May 18,1891, to December 31, 1894, with tbe knowledge and consent of tbe officers of tbe defendants having charge thereof and without objection from tbe claimant.

The claimant contends that as there was no specific compensation agreed upon for tbe ferry service, it should be paid, as upon an implied contract, for work and labor done, and that the measure of condensation for the services so rendered should be based upon the ratio, in each year, between the cost per mile of operating the ferry and the cost per mile of operating the railroad during the period stated.

The defendants contend that the claimant’s mail route was in legal effect extended so as to include the service from Birds Point to Cairo, and that it should not be paid any sum “ exceeding pro rata additional pay” therefor, as provided by the Act August 3, 1882, section 1 (22 Stat. L., 216), which reads:

“ The Postmaster-General is hereby authorized, in cases where the mail service would be thereby improved, to extend service on amail route under contract, at not exceeding prorata additional pay, for any distance not exceeding 25 miles beyond either terminal point named in said contract: Provided, That no service shall be extended beyond the original terminal points more than once during the term for which the contract shall have been made.”

The ordinary rule, as between individuals, is that where one, in the absence of a specific agreement as to compensation, renders services to another with his knowledge and consent, such person will be entitled to reasonable compensation therefor. This is the rule on which the claimant relies, and but for the statute above cited would be applied in this case.

The statute, however, changed the rule in respect of the compensation to be paid by the Government for extended u service on a mail route under contract,” by limiting in terms the compensation for such extended service to “not exceeding pro rata additional pay for any distance not exceeding 25 miles beyond either terminal point named in said contract.”

So that if the service under the claimant’s contract was extended from Birds Point, the northern terminus, to Cairo, a distance of 6 miles, the statute fixes the compensation therefor, i. e., at the same rate per mile per annum that was paid to it for service between Birds Point and Texarkana, and of this the claimant was bound to take notice.

The contract did not obligate it to transfer or transport the mails from Birds Point to Cairo by ferry service or otherwise,but without a separate contract fixing compensation therefor, and without objection, it did so transport and transfer the mails in cars by ferryboats, thereby improving the mail service, purposed by the act as the basis of an extension. Such service, therefore, became in legal effect a part of the contract,- which the claimant agreed to perform at the rate fixed by statute.

There having been no separate contract fixing a different rate therefor, we must consider the claimant’s service so rendered as an extension of its then existing mail route contract within the intent and meaning of the statute, and for this reason the claimant is entitled to recover only the compensation therein provided, amounting in this case to $2,517; for which judgment will be entered in its favor.  