
    CHAUNCEY M. LOCKWOOD, HEIR OF CHAUNCEY M. LOCKWOOD, DECEASED, v. THE UNITED STATES.
    [No. 25022.
    Decided May 2, 1921.]
    
      On the Proofs.
    
    
      Contract; parties plaintiff. — Where an act of Congress conferring jurisdiction on the court authorizes the legal representatives of a decedent to bring suit and an administrator cte bonis non has been appointed and is ready to act in the settlement of the estate, the heir at law of such decedent has no authority to bring such suit.
    
      Same; increase in weight of mail; failure to protest. — Where an act of Congress increasing the weight of the mails is passed 12 days after the acceptance of the bid, and two months after-wards the plaintiff enters into a formal contract, without protest or objection, to carry the mails, and carries them for four months and then sells the entire contract and thereafter' has nothing to do with carrying the mails and no interest in compensation for carrying them, he is not entitled to recover compensation for any increased weight caused by such act.
    
      The Repórtelas statement of the case:
    
      Mr. Benjamin Carter for the plaintiff. Mr. F. Garter Pope was on the briefs.
    
      Mr. J. Robert Anderson, with whom was Mr. Assistant Attorney General Franlc Davis, jr., for the defendant. Mr. Webster Spates was on the briefs.
    The following are the facts of the case as found by the court:
    I. The plaintiff is the son and heir of Chauncey M. Lockwood, deceased, the contractor referred to in the next succeeding finding.
    II. On the 9th day of March, 1868, the Postmaster General of the United States advertised for proposals to carry the mail over route No. 16637, from Salt Lake City, in Utah, to The Dalles, in Oregon, and return six times a week in each direction, the distance between said terminal points being 876 miles. On June 13, 1868, the bids which had. been received in answer to said proposal were opened and the bid of C. M. Lockwood (now deceased) was found to be the lowest and was therefore accepted and a contract was awarded to him at the bid price of $149,000 per annum, the service to commence as stipulated in the invitation for bids on October 1, 1868, and to terminate on June 30, 1870. On the 24th day of August, 1868, Lockwood executed a contract in writing with sureties as required by law, together with the oath required by law to be by him executed before entering upon the discharge of his duties, which contract reads as follows:
    “ United States of America. No. 16637. $149,000 per annum.
    “ This article of contract, made June thirteenth, eighteen hundred and sixty-eight, between the United States (acting in this behalf by their Postmaster General) and C. M. Lockwood, contractor, and Daniel M. French and Robert Grant as his sureties:
    “ Witnesseth, that whereas C. M. Lockwood has been accepted, according to law, as contractor for transporting the mail on route No. 16637, from Salt Lake City, Utah, by Stoker, Centreville, Farmington, Kaysville, South Weber, Willard, Brigham City, Bear River Junction, Boise City, Ida, Montgomery, Shephersville, Martinsville, Middleton, Weiser Ranch, Express Ranch, Oregon, Auburn, Baker City, Union, Mitchell’s Station, Walla Walla, Wash. T., Wallula and Umatilla, Oreg., to The Dalles and back six times a week at one hundred and forty-nine thousand dollars per year, for and during the term beginning October first, eighteen hundred ana sixty-eight, and ending June thirty, eighteen hundred and seventy. Now, therefore, the said contractor and his sureties do jointly and severally undertake, covenant, and agree with the United States and do bind themselves—
    “ 1st. To carry said mail with certainty, celerity, and security, using therefor such means as may be necessary to transport the whole of said mail, whatever may be its size, or weight, or increase, during the term of this contract, and within the time fixed in the annexed schedule of departures and arrivals, except that when more than seven minutes are taken for opening and closing the mails at any office the surplus time so taken is to be allowed in addition to wbat is given in the schedule; and. so carry until said schedule is altered by the authority of the Postmaster General of the United States, as hereinafter provided, and then to carry according to said altered schedule.
    “ 2nd. To carry said mail in a safe and secure manner, free from wet or other injury, under a sufficient oilcloth or bearskin if carried on a horse, and in a boot under the driver’s seat if carried in a coach or other vehicle, and in preference to passengers, and to their entire exclusion if its weight and bulk require it.
    “ 3rd. To take the mail and every part of it from, and deliver it and every part of it, at each post office on the route, or that may hereafter be established on the route, and into the post office at each end of the route, and into the post office at the place at which the carrier stops at night, if one is there kept; and if no office is there kept, to lock it up in some secure place, at the risk of the contractor.
    “ They also undertake, covenant, and agree with the United States, and to bind themselves jointly and severally as aforesaid, to be answerable for the person to whom the said contractor shall commit the care and transportation of the mail, and accountable to the United States for any damages which may be sustained by the United States through his unfaithfulness or want of care; and that the said contractor will discharge any carrier of said mail whenever required to do so by the Postmaster General; also, that he will not transmit, by himself or his agent, or be concerned in transmitting, commercial intelligence more rapidly than by mail; and that he will not carry out of the mail letters or newspapers which should go by post. And further, the said contractor will convey, without additional charge, post-office blanks, mail locks, and bags, also, the special agents of the department, on the exhibition of their credentials, if a coach or other suitable conveyance is used.
    “ They further undertake, covenant, and agree with the United States that the said contractor will collect quarterly, if required by the Postmaster General, of postmasters on the said route, the balances due from them to the United States on their quarterlv returns, and faithfully render an account thereof to the Postmaster General in the settlement of his quarterly accounts, and will pay over to the Auditor of the Treasury for the Post Office Department on the order of the Postmaster General all balances remaining in his hands.
    
      “ For which services, when performed, the said C. M. Lockwood, contractor, is to be paid by the said United States the sum of one hundred and forty-nine thousand dollars a year, to wit: Quarterly in the months of November, February, May, and August, through the postmasters on the route, or otherwise, at the option of the 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 the said contractor and his sureties that the Postmaster General may alter the contract and alter the schedule, he allowing a pro rata increase of compensation within the restrictions imposed by law for the additional service required, or for the increased speed, if the employment of additional stock or carriers is rendered necessary; -but the contractor may, in case of increased expedition, relinquish the contract on timely notice, if he prefer it to the change; also, that the Postmaster General may discontinue or curtail the service in whole or in part, in order to place on the route a greater degree of service, or whenever the public interests in his judgment shall require such discontinuance or curtailment for any other cause, he allowing as a full indemnity to the contractor one month’s extra pay on the amount of service dispensed with, and a pro rata compensation for the amount of service retained and continued.
    “ It is hereby also stipulated and agreed by the said contractor and his sureties that in all cases there is to be a forfeiture of the pay of a trip when the trip is not run; and of not more than three times the pay of the trip when the trip is not run and no sufficient excuse for the failure is furnished ; a forfeiture of at least one-fourth part of it when the running is so far behind time as to lose connection with a depending mail; and that these forfeitures may be increased into penalties of higher amount, according to the nature or frequency of the failure and the importance of the mail; also, that fines may be imposed upon the contractor, unless the delinquency be satisfactorily explained to the Postmaster General in due time, for failing to take from or deliver at a post office the mail, or any part of it; for suffering it to be wet, injured, lost, or destroyed; for carrying it in a place or manner that exposes it to depredation, loss, or injury, by being wet or otherwise; for entrusting the mail to a carrier under sixteen years of age; for refusing, after demand, to convey a mail by any conveyance which the contractor regularly runs, or is concerned in running, on the route, beyond the number of trips above specified; or for not arriving at the time set in the schedule. And for setting up or running an express to transmit letters or commercial intelligence in advance of the mail, or for transporting knowingly, or after being informed, anyone engaged in transporting letters or mail matter in violation of the laws of the United States, a penalty may be exacted of the contractor equal to a quarter’s pay; but in all other cases no fine shall exceed three times the price of the trip. And whenever it is satisfactorily shown that the contractor, his carrier or agent, has left or put aside the mail, or any portion of it, for the accommodation of passengers, he shall forfeit not exceeding a quarter’s pay.
    “And be it hereby further stipulated and agreed by the said contractor and his sureties that the Postmaster General may annul the contract for repeated failures; for violating the post-office laws; for disobeying the instructions of the department; for refusing to discharge a carrier when required by the department; for assigning the contract without the consent of the Postmaster General; for setting up or running an express as aforesaid; or for transporting persons conveying mail matter out of the mail as aforesaid; or whenever the contractor shall become a postmaster, assistant postmaster, or Member of Congress; and this contract shall, in all its parts, be subject to the terms and requisitions of an act of Congress passed on the twenty-first day of April, in the year of our Lord one thousand eight hundred and eight, entitled “An act concerning public contracts.”
    “ 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 hereunto set their hands and seals, the day and year set opposite their names, re-
    spectivefy. Alex W. Randall,
    
      Postmaster General.
    
    “ Signed, sealed, and delivered by the P. M. Gen., in the presence of—
    Chauncey M. Lockwood [l. s.j, •
    
      August 1868.
    
    Daniel M. French [l. s.],
    
      August 2If., 1868.
    
    Robert GRANT [l. s.],
    
      August 24-, 1868.
    
    “ And by the other parties hereto in the presence of—
    R. W. Mitchell,
    W. M. Wases.
    “ I hereby certify that I am acquainted with Daniel French and Robert Grant, and they are good and sufficient sureties for the amount in the foregoing contract.
    Henry J. Weldron,
    
      Postmaster at The Dalles.
    
    
      “ The schedule of departures and arrivals.
    Leave Salt Lake City daily, except Sunday, 8 a. m.
    Arrive at The Dalles in nine days.
    Leave The Dalles daily, except Sunday, at 8 a. m.
    Arrive at Salt Lake City in nine days.
    Winter schedule, twelve days.”
    III. At the time the contract was awarded to Lockwood he was not engaged in carrying the mails over any part of said route and had no equipment therefor. He attempted to purchase equipment from Wells Fargo & Co., who were then engaged in carrying the mail on a portion of this route, but in this he failed. He sublet the contract for that portion of the route between Boise City and The Dalles, a distance of a little over 400 miles, to one John Hailey, and that portion of the east end of the route between Salt Lake City and Ogden, a distance of about. 85 or 40 miles, to Wells Fargo & Co., and that portion of the route between Ogden and Bear River, a distance of about 60 miles, to three men named Leach, Brown, and Culver. Lockwood procured some inferior equipment consisting of horses, buggies, spring wagons, and hacks, to which he afterward made additions, substituting through-braced stage wagons for the spring wagons, and carried the mail himself over that portion of the route between Boise City and Bear River Junction, a distance of between 375 and 400 miles, for a period of four months from October 1, 1868, to January 31, 1869, inclusive, but he did not at any time other than during said period of four months carry the mail over any part of said route, and he did not during said four months carry the mail over any portion of the route other than that between Boise City and Bear River Junction.
    IV. Previous to the time that John Hailey .began carrying the mail over that portion of the route between Boise City and The Dalles for Lockwood he was engaged in the stage business in connection with which he not only carried mail but he had a contract with Wells Fargo & Co. to carry express and some trade in a light fast-freight business, and also carried passengers. He was engaged in an effort to build up his passenger business in particular, and to that end he arranged to receive passengers at Portland and transport them eastward on through tickets issued by a navigation company, but he was impeded in the development of this business by Lockwood, who refused to allow him to sell through tickets good over the portion of the route being operated by him and refused to arrange to expedite the travel of passengers over that portion of the route.
    During this period of four months while Lockwood was himself operating this portion of the route he entered into negotiations with Hailey with a view of selling to him the entire route, together with such equipment and such forage supplies as he, Lockwood, had upon the portion of the route being operated by him. These negotiations were consummated by the sale evidenced by a contract in writing, on January 31, 1869, by Lockwood to Hailey of the contract for the carrying of the mail on this route and of the equipment then owned and used by Lockwood, for the contract price of $52,000, in addition to which Hailey paid Lockwood something over $15,000 for forage then owned by Lockwood and in storage at various stations along the portion of the route operated by him. The said sum of $52,000 was much more than the equipment then owned by Lockwood was worth, and that purchase price for the equipment and contract was paid by Hailey because he regarded it as necessary in order to protect and develop his own business that he should acquire control of that portion of the route theretofore operated by Lockwood. Hailey took possession of the route under this contract of purchase on .the 1st day of February, 1869, and thereafter operated it solely at his own expense and received the compensation therefor directly from the United States, and at no time thereafter received anything from Lockwood.
    Y. There was some increase in the weight of the mails carried over this route after Lockwood entered upon the performance of his contract, but just what the increase was is not definitely shown, and it is not shown how much of any increase was the normal increase to be anticipated and how much was due to the operation of the act of June 25, 1868, removing the application of letter postage rates to certain classes of mail matter under the provisions of section 4 of the act of March 25, 1864, as amended by the act of January 20, 1865. By process of deduction it is estimated upon a stated hypothesis, by the Post Office Department, that the daily weight of mails carried over this route during the month of September, 1868, was approximately 228 pounds; during the month of October, 299 pounds; during the month of November, 478 pounds; during the months of December and January, a gradually reduced weight; and during the month of February, 244 pounds; that the heaviest mail carried over the route was in the month of March, 1869, when it reached 696 pounds, at a time when Lockwood had nothing whatever to do with the performance of the contract.
    The figures given are estimates predicated on the weight of mails received at Salt Lake City and deduction of the portion estimated to be for local delivery through the Salt Lake City post office, but it is shown that mails received at Salt Lake City included, besides that for local delivery, mail for two other routes than that in question, and, under all the circumstances, the figures given amount to estimates only, subject to variation either way. There is no proof as to the actual amount of mail carried on the route in question and no proof as to the amount of increase by reason of the operation of the act referred to.
    VI. As railroad construction proceeded in that section of the' country, railroad service was substituted for star-route service and by reason of an extension of the Union Pacific Railroad and its connection with the Central Pacific Railroad, whereby these roads provided mail service for practically all of that portion of said route between Salt Lake City and Indian Creek, this route was on June 17, 1869, curtailed between Indian Creek or Kelton and Salt Lake City and the length thereof was decreased by 110 mile's and the contract pay was reduced to $130,278 per annum. The effect of the curtailing of this route was not only to relieve the contractor from carrying the mails over this 110 miles, but it also relieved him from carrying such mail as had been previously carried over a connecting route to Virginia City, Mont, which was a distributing point for a large part of the Montana mail, and the weight of the mail therefore carried over the route in question was decreased. When this route was thus curtailed John Hailey was paid one month’s extra compensation pro rated to that portion of the route in accordance with the usual practice prevailing in the Post Office Department under such circumstances.
    VII. No additional or extra service on this route was ever ordered by the Post Office Department during the period in question. Neither the original contractor Lockwood nor any subcontractor nor the assignee of the contractor ever filed any protest or claim with the Post Office Department on account of any alleged increase of mails upon said route during the life of the contract nor until six months thereafter. At no time after the submission of his bid did Lockwood ever object to entering into a contract pursuant thereto, and at no time after the execution of the contract did he ever object or protest against entering into performance thereof or in any manner request to be relieved therefrom.
    In January, 1870, there was reported in the Senate a joint resolution authorizing and directing the Postmaster General “to adjust and settle upon equitable principles the claim of Chauncey M. Lockwood, contractor upon mail route No. 16637 between Salt Lake City, in Utah, and Dalles City, in the State of Oregon, for additional compensation for carrying the mails over said route,” which resolution was transmitted to the Postmaster General “ for such information as the department records might contain relative to the claim.”
    On January 24, 1870, the Postmaster General replied stating that “ there is no information or intimation on the records or files of the department that increase of compensation is claimed,” and stating that the joint resolution,and inquiry accompanying the same conveyed the only knowledge the department had of such a claim.
    About May, 1870, a petition to Congress by Lockwood praying for increased compensation for carrying the mails over this route, with accompanying papers, was left at the Post Office Department by Senator Cole, of California. On May 4, 1870, the Postmaster General communicated with Senator Cole, reciting his views of the matter, and returning the papers with the statement that “it must remain for Congress to say if this claimant is entitled to the relief he demands, or to any relief.”
    On January 14,1871, Lockwood for the first time appealed directly to the department, at which time he requested a hearing. He was informed in reply by the Postmaster General that “ the case is one that the head of this department has not the power to act upon, and that Congress, or the Court of Claims, only can afford the relief asked for.”
    Bills or petitions for the relief of Lockwood were introduced in or presented to every Congress from the Forty-first to the Fifty-seventh, inclusive. On bills introduced in the Senate during the Fifty-first, Fifty-second, Fifty-third, and Fifty-fourth Congresses there were favorable reports recommending passage, and during these years some four .or five bills did pass one House, but none passed both.
    It inferentially appears from a report of the Senate Committee on Post Offices and Post Roads, Report No. 303, Fifty-fourth Congress, first session, reporting on a pending bill (S. 713) “ for the relief of the legal representatives of Chauncey M. Lockwood,” which report adopts and sets out Report No. 22, first session Fifty-third Congress, that said committee was considering the merits of the bill on the assumption that the service in question had been rendered by Lockwood during the contract period. Affidavits made in and subsequent to October, 1869, and submitted in support of the bill and printed with the report certify to the performance of the service since the 1st day of October, 1868, up to date, with regularity and dispatch. The report refers to the reduction in “ Mr. Lockwood’s pay ” by reason of the curtailing of the route. In no part of the report is there mention or recognition of the fact that Lockwood’s service was for a period of four months only on a part of the route.
    In the act of May 27, 1902, providing for the allowance of certain claims allowed by the Court of Claims (32 Stat., 207), it was provided—
    • “That the legal representatives of Chauncey M. Lockwood be, and they are hereby, authorized to commence their suit in the Court of Claims of the United States for extra mail service on route numbered sixteen thousand six hun-clred and thirty-seven, extending from Salt Lake City, Utah, to The Dalles, Oregon; and the Court of Claims shall have jurisdiction to adjudicate the same upon the basis, of justice and equity, and to render a final judgment therein for the value of such extra mail service performed as aforesaid; and from any judgment that may be rendered in said cause either party thereto may appeal to the Supreme. Court of the United States; and the bar of the statute of limitations shall not avail in such cases.”
    VIII. At the same time that bids were solicited for the service on this route bids were also solicited for service on route No. 16665, extending from Cheyenne, Wyo., to Virginia City, Nev., a distance of 1,095 miles, over which seven round trips a week were required, and which route was known as the “ Overland route ” and was the route carrying the heaviest mails of any route in that section of the country. It brought into Salt Lake City mails from the east, both for local delivery and for transportation southwest to Virginia City, Nev., over that route and beyond even to foreign countries, and north and northwest over other routes and eastbound it received at Salt Lake City local mail and the mail coming in on route No. 16637. Rapid progress was then being made in the construction of railroads into the territory covered by that route, and the notice to bidders informed them that the route would be curtailed as rapidly as justified by the extensions of the Union Pacific and Central Pacific Railroads.
    The bid of one Carlton Spaids for the service on this route at $335,000 per annum was accepted, and he entered into contract therefor. In September, 1868, Spaids began writing to the department with reference to the service on this route, and in a letter of September 17, 1868, he stated that he was not obligated to carry the additional mail thrown on this (the “ Overland ”) route by reason of the operation of the act of June 25,1868, without additional compensation. In reply he was informed that he would be expected to carry the mail on this route in accordance with the terms of his contract, one of the conditions of which was—
    “ 1st. To carry said mail with certainty, celerity, and security, using therefor such means as may be necessary to transport the whole of said mail, whatever may be its size, or weight, or increase, during the term of this contract.”
    
      Other letters were received thereafter by the department from Spaids, intimating that he would not enter upon the performance of the contract unless assured that additional allowance would be made for increased weight of mail, and he did not enter upon the performance of the contract.
    It became necessary to secure service on the route at once by temporary arrangement, there being no time to advertise for bids. Wells Fargo & Co. were the only people equipped to enter at once on the service, no one else would undertake it under the circumstances, and a temporary arrangement, without formal contract, was made with them on their own terms, which involved compensation at the rate of $1,750,000 per annum. By reason of curtailments of the route they were paid during the periods stated for distances as follows:
    October 1, 1868, to October 9, 1868, 893.7 miles.
    October 10, 1868, to October 31, 1868, 784.7 miles.
    November 1, 1868, to December 9, 1868, 592.7 miles.
    December 10, 1868, to December 19, 1868, 472.7 miles.
    December 20, 1868, to February 24, 1869, 375.7 miles.
    February 25, 1869, to March 24, 1869, 297.7 miles.
    March 25, 1869, to March 31, 1869, 223.7 miles.
    April 1, 1869, to April 19,1869, 138.7 miles.
    April 20,1869, to May 9, 1869, 65.7 miles.
    From May 10, 1869, the two railroads were joined and no further service was performed on the Overland route.
    Previous to the term of the Lockwood contract $316,000 per annum was being paid for service on route 16637. The contract was originally for service between Walla Walla and Salt Lake City, 700 miles, at $156,000 for three-times-a-week service. The service was extended to The Dalles and $30,-000 additional allowed therefor. It was then increased to six times a week and $130,000 allowed for this increased service, thus making the $316,000 rate. When Lockwood bid for the route there were five other bids submitted and all were less than the $316,000 rate then being paid. The bid next higher than Lockwood’s was 13 per cent in excess thereof.
    When bids were solicited for the term following that of the Lockwood contract 17 bids were received, ranging from $75,000 to $250,000, four only being in excess of the amount ($180,278) then being paid Hailey under the Lockwood contract. The contract was awarded to one Lee, a resident of Salt Lake City, at his bid of $75,000, but he failed to execute his contract or commence the service, the reason not being shown. It became necessary to secure temporary service, which was secured at the rate of $216,000 per annum for the period from July 1 to August 15, the order authorizing the service providing that the accepted bidder (Lee) should be held liable. Other bidders for the service were requested to report whether they desired to assume the service at their former bids, and Hill Beachy indicated that he would perform the service at his bid of $192,000 and requested that contract be entered into with J. W. Parker, Owen Tuller, and L. Smalley Barlow. The bid of Lee was therefore set aside and contract entered into with Parker, Tuller & Barlow at $192,000. The records show that Bradley Barlow was named as the agent of the contractors, Parker, Tuller & Barlow, and that his address was St. Albans, Vt.
    IX. At the time the sale of the route in question was negotiated and the contract therefor entered into as set out in Finding IV Lockwood informed Hailey that he considered that he was entitled to extra pay on account of the change in the law throwing more mail on the route and that he intended to apply for more pay and prosecute the claim, and he agreed that in consideration of the purchase of the route by Hailey he (Lockwood) would give him (Hailey) one-half of wliat he got. This agreement was made in the presence of the party who drew the written contract of sale, but it was not considered advisable to insert it therein.
    Lockwood, during the time he owned the route, never paid his subcontractors any additional compensation because of any increase in the weight of mail carried.
    X. On the contract here involved under which Lockwood carried the mail over a portion of the route for four months and which, together with his equipment, he sold to Hailey, Lockwood made a profit.
    XI. Chauncey M. Lockwood died in the State of Michigan in 1878 and administration was had on his estate in the States of Oregon and Michigan under letters issued to Levi H. Lockwood, administrator, and Levina J. Lockwood, administratrix. At some time thereafter not definitely shown said estate was settled and they were discharged.
    On December 5, 1887, in the County Court of Marion County, Oreg., J. W. Hodson was appointed and qualified as administrator de bonis-non of the estate of said Lockwood, deceased. The order appointing said Hodson was as follows:
    “ Be it remembered that at a regular term of the County Court of Marion County, State of Oregon, in Probate sitting begun and held at the Courthouse in the City of Salem, State of Oregon, on Monday, the 5th day of December, 1887, and from day to day thereafter, when were present Hon. T. C. Shaw, County Judge,
    M. M. Chapman, Clerk,
    John W. Minto, Sheriff.
    “ When on Saturday, the 10th day of December, 1887, the following proceedings were had, to wit:
    “ In the Matter of the
    Estate of Chauncey M. Lockwood, deceased.
    “ On this day comes J .W. Hodson, who presents to the court his duly verified petition, praying the appointment of Administrator of the estate of said decedent de bonis non. And it appeasing to the court, and the court finds from due and sufficient proof herein filed, that said Chauncey M. Lockwood died in the State of Michigan, about the year 1878, leavingan estate in said Marion County in the State of Oregon. That his estate has been administered upon but at the time thereof a claim against the United States Government was not listed with the assets of said estate for the reason that the value of such claim could not be estimated.
    “ That said claim is still unadjusted and due the estate of said Chauncey M. Lockwood, deceased. That before said claim can be prosecuted before the proper U. S. department or Court of Claims it is necessary that an administrator de bonis non of said estate be appointed. And it appearing to the court further that said J. W. Hodson is a suitable, competent, and qualified person for said trust, and that he is the duly qualified and acting guardian of Chauncey M. Lockwood, a son and minor of said decedent, and that said minor is the only heir to said estate. It is therefore ordered and decreed by the court that said J. W. Hodson be, and is, appointed administrator of the estate of said Chauncey M. Lockwood, deceased de bonis non. And it further appearing that the probable value of said estate is $1,000, it is ordered that letters issue in accordance with the prayer of said Éetition upon the filing of an approved bond by said J. W. lodson in the sum of $2,000.
    “(Signed) T. C. Shaw,
    
      County Judge?
    
    Together with a bill introduced in the Fifty-seventh Congress providing for payment to the legal representatives of Chauncey M. Lockwood, deceased, of compensation for the alleged extra mail service here involved, there was presented a duly certified copy of the above record appointing J. W. Hodson administrator de bonis non of said estate. Said j. W. Hodson was then in life and did not die until 1914, and it does not appear that his authority as such administrator de bonis non was in any manner terminated before his death. No administrator of said estate has since been appointed.
    XII. On November 11, 1875, Levi H. Lockwood, administrator, and Levina J. Lockwood, administratrix, of the estate of Chauncey M. Lockwood, deceased, commenced in this court an action to recover of the United States $227,-237.96 for additional services and additional expenses incurred in carrying the mails on said route No. 16637 .by reason of the' same alleged increase due to the same cause as herein alleged. On December 1, 1879, this case having been theretofore set for trial on that day, it was by the plaintiffs dismissed.
    On April 28, 1904, the present case was commenced by Chauncey M. Lockwood as son and heir of Chauncey M. Lockwood, deceased, said Hodson then being in life. On May 4, 1914, it was by the court dismissed for want of prosecution. On June 27, 1914, there was filed a motion, signed by the “Attorney for Claimants,” to set aside the order of dismissal alleging a misunderstanding or inadvertence and a purpose to proceed at once with the preparation of the case, which motion was granted. This motion was, in the caption, entitled “ Levi H. Lockwood, Adm’r, and Levina J. Lockwood, Adm’x, of the estate of Chauncey M. Lockwood, deceased, v. The United States,” but it bore the proper number of this case, and said use of the wrong title was an inadvertence.
   Downey, Judge,

delivered the opinion of the court:

This case involves the period from October 1, 1868, to June 30, 1870, and takes us back to the stage-coach days of half a century ago when a large part of our now prosperous western country had not yet been penetrated by the railroads. A program of legislative relief began in January of 1870 and continued with more or less but no ultimate success until in 1902, when Congress shifted the burden to this court by inserting in the act of May 27,1902, 32 Stat. 207, the following provision:

“ That the legal representatives of Chauncey M. Lockwood . be, and they are hereby, authorized to commence their suit in the Court of Claims of the United States for extra mail service on route numbered sixteen thousand six hundred and thirty-seven, extending from Salt Lake City, Utah, to The Dalles, Oregon; and the Court of Claims shall have jurisdiction to- adjudicate the same upon the basis of justice and equity, and to render a final judgment therein for the value of such extra mail service performed as aforesaid; and from any judgment that may be rendered in said cause either party thereto may appeal to the Supreme Court of the United States; and the bar of the statute of limitations shall not avail in such cases.”

On August 24, 1868, Chauncey M. Lockwood, the father of this plaintiff, entered into a contract for carrying of the mails on route No. 16637 from Salt Lake City, Utah, to The Dalles, in Oregon, a distance of about 875 miles, predicated upon his bid therefor made in response to an advertisement of March 9, 1868, and accepted June 13, 1868. The contract is set out in full in the findings.

At the time of the making of the bid the practical operation. of the laws then in force (act of March 25, 1864, 13 Stat. 36, amended by act of January 20, 1865, 13 Stat. 421) was, by the application of letter postage, to exclude from the mails carried over the route in question all mailable matter except letters, newspapers from a known office of publication to bona fide subscribers, and franked matter, and by the amendatory act, “ newspapers, periodicals, magazines, and exchanges from a known office of publication, to bona fide subscribers, not exceeding one copy to each subscriber from any one office.”

On June 25,1864, after the submission of the bid by Lockwood but before the execution of the contract and more than three months before his service was to commence, Congress passed a repealing act (15 Stat. 79) the effect of which, it is claimed, was to largely increase the amount of mail to be carried on this route, and the action is to recover $100,000 as the resultant increased cost.

On November 11,1875, while the matter was also pending in Congress, Levi H. Lockwood, administrator, and Levina J. Lockwood, administratrix, commenced an action in this court to recover for these alleged additional services and expenses the sum of $227,237.96. On December 1, 1879, the day upon which the case had theretofore been set for trial, the case was, by the plaintiffs, dismissed. On April 28,1904, this action was commenced. On May 4, 1914, it was dismissed by the court for want of prosecution. On June 27, 1914, there was filed an application to set aside the dismissal, alleging misunderstanding or inadvertence and a purpose to proceed with the preparation of the case and the action was reinstated.

This motion to set aside the dismissal‘and reinstate the action was entitled, “ Levi H. Lockwood, Admr., and Levina J. Lockwood, Admx., v. The United States,” and was signed by the “Attorney for Claimants.” It is now contended by the defendant that no motion was ever made to reinstate this case and that it stands dismissed by virtue of the order of May 4, 1914, and is not before the court for consideration. But the motion to set aside the dismissal and reinstate the case also bore the correct number of this case; the entitling was regarded as and no doubt was an inadvertence; the order to reinstate was intended by the court to apply to this case, and it has been and will be so regarded.

But another question is presented by the defendant which is properly for consideration before we reach the merits of the case on the facts. It is contended that this action can not be maintained by the present plaintiff as heir but should and must have been brought by the administrator de bonis non.

The jurisdictional act, without which of course the present action could not have been maintained at all, authorized the commencement of suit by “ the legal representatives of Chauncey M. Lockwood.”

While it is not difficult to sustain by authority the contention that “ legal representative ” means, in case of an intestate decedent, his administrator, it is, on the other hand, not difficult to sustain the contention that heirs are sometimes to be held to be within that term. But if the latter contention is to be conceded in the aspect of the many cases on the subject, it would seem that the facts of the present case exclude it from that class. It appears by certifie'd copy of his letters, set out in Finding XI, that in December, 1887, one J. W. Hodson, then said to be the guardian of this plaintiff, was duly appointed “ administrator of the estate of said Chauncey M. Lockwood, deceased, de bonis non.'' There is no attempt made to show, as no doubt might easily have been done if it were a fact, that Hodson’s fiduciary capacity had been in any way terminated before this suit was brought, and it appears that he was in life until some time in 1914. And it is significant as to this appointment and the continuance of the trust and also as to the intention of pending legislation, framed in that respect like the jurisdictional act, that: a certified copy of this appointment accompanied a bill introduced in the Fifty-seventh Congress, the same Congress which passed the act conferring jurisdiction, which bill provided for payment for alleged extra mail service to “the legal representatives of Chauncey M. Lockwood, deceased.” It does not appear in the record and we have not thought it worth while to search congressional procedure for the facts, but common knowledge of such matters justifies the assumption, at least as a probability, that the paragraph in the act of May 27, 1902, conferring jurisdiction on this court, was the determined-upon disposition of the bill referred to in connection with which the certified copy of this appointment was presented.

Entirely aside from what it might be concluded that Congress, under these circumstances, meant when it authorized Lockwood’s “ legal representatives ” to commence suit in this court, we find no authority justifying the conclusion that “legal representatives” may be construed to include heirs when there is an administration pending and an acting administrator. After an estate has been administered upon and the administrator discharged, heirs may well be held to be, for some purposes, the legal representatives of the decedent and may be so recognized without conflict of authority or confusion in procedure, but to vest authority to institute proceedings in behalf of an estate in the administrator or the heirs or both at the same time would present a condition which repudiates itself. There seems no room for any conclusion other than that while an administration is pending and an administrator is acting or empowered to act, he, to the exclusion of the heirs, must act in the prosecution of claims due the estate. We may add to this what it is apparent that Congress, under the circumstances stated, must have intended by these words when it authorized institution of this suit. i

A conclusion that this plaintiff had no right to institute and maintain this action necessarily disposes of it, but such disposition is upon a ground somewhat technical in its character and we prefer not to base our disposition of the case entirely upon it. There is also another theory of the defense presented, which if sustained, would result in a disposition of the case without regard to its merits on the facts. That is the contention that by reason of the operation of the Crawford amendment the case should be dismissed. We do not find it necessary under the circumstances to decide this question.

This matter has been pending in one form or another, in one jurisdiction or another, for 60 years. Congress had had to do with it for over 30 years when it cleared its own decks by opening the doors of this court to the claimant upon its prescribed terms. Under all the circumstances we think it but proper that we should, in addition to what has been said, indicate our views as to the merits of the case.

It is noticeable that the jurisdictional act authorizes us to adjudicate this claim “ upon the basis of justice and equity ” and to render judgment for “ the value of such extra mail service performed as aforesaid.” The act seems to concede that there could be no recovery in an action at law on the contract and such is so evidently the case that that view of the matter need not be discussed. Just what the actual scope of tbe jurisdiction conferred is, may be somewhat problematic, but our view of the case renders accurate definition unnecessary.

The action is upon the theory that Lockwood performed additional service and incurred additional expense by reason of the increase in the weight of the mails resulting from the change in the law referred to above for the contract period from October 1,1868, to June 30, 1870, inclusive, and it may be observed, as shown by the findings, that the various claims presented to Congress were upon the theory that he had performed this largely augmented service during this whole period. This is plainly not the fact. It appears from the record, undisputed, that Lockwood never carried the mails over all of this route. He carried them over a portion of the route for the first four months, during which time they were carried over the remaining portions of the route by subcontractors ; and it appears undisputed that after the expiration of that four months he had nothing whatever to do with carrying the mails over any part of the route. He sold the route to another man, who took it over in its entirety on February 1, 1869, so that it is apparent that if there is merit in the claim at all it must be found in the first four months of the contract period.

The payments for the service after the sale of the route were, according to the testimony, never made through Lockwood. The purchaser, Haley, testifies that they were made to him through his bank at Portland, Oreg., the bank at the end of each quarter receiving from him the necessary certificates as to his rendition of the service together with his “ check on the Post Office Department ” and attending to the collection for him, placing the amount to his credit. We have been asked and have declined to make a call on the Post Office Department intended to procure vouchers or checks issued in payment for the service on this route, or information with reference thereto, for the purpose of disputing the testimony of Haley as to payments being made direct to him, if in fact that should be the result of such production, a fact not alleged. Haley was plaintiff’s witness. But if plaintiff might be conceded the right to dispute his own witness it could serve no purpose favorable to him if it should be made to appear that vouchers for the service on this route after the first four months were issued in Lockwood’s name. It is undisputed and it is not proposed to dispute the fact that the pay went wholly to Haley without Lockwood’s intervention. If we should assume that in eonnéction with the sale of the route and the execution of the written contract with reference thereto, there had also, as providing a method of procedure, been executed a power of attorney by Lockwood to Haley or to Haley’s bank authorizing the execution of vouchers and if in fact vouchers had thereafter been issued in Lockwood’s name, but handled as indicated, the proceeds going wholly to Haley without Lockwood’s intervention, it could serve no good purpose in the plaintiff’s behalf. That such was the possible procedure is only an assumption, unimportant if perchance correct. It is conclusively shown that Lockwood was entirely free from any burden or responsibilities of any kind growing out of this contract or of any participation in it in any way after the first four months. We come to consideration of that period.

When the facts such as we have before us with reference to this contract are summarized they present some peculiarities. We find no protest made, after the change in the law, against entering into this contract, although the change in the law had occurred about two months before its execution, and after the execution of the contract we find no protest against entering into its performance, although the period of performance did not commence for more than a month thereafter. And this is true although much stress is laid on the fact that another bidder for another route passing through Salt Lake City declined to enter upon the performance of his contract. He had knowledge of the change in the law. The presumption is that Lockwood also had. And after entering upon the performance of the contract there was no protest made to the Post Office Department, no claim made for any additional compensation, no intimation that conditions were in any way unsatisfactory, but when Lockwood sought to sell the route to Haley he informed Haley that he was going to press a claim for additional pay, and in connection with the sale and as a part of the consideration passing to Haley agreed that he would give Haley one-half of what he recovered. This agreement, its making undisputed, although not included in the written contract because not deemed “advisable,” might be for consideration as to its effect, if worth while in the light of other considerations. But even after announcement to Haley of this purpose there was no communication on the subject to the Post Office Department, was never any in fact with the department until after the expiration of the contract period, but a movement started in the Senate and it was only after a reference to the department for information that the head of the Postal Service knew anything about any such claim.

During this four-month period when Lockwood operated a part of the route himself and the other parts through subcontractors he paid nothing additional to any subcontractor by reason of any increase in the mail. That he went to any additional expense himself on account of any increase is not shown. He operated from the beginning with a makeshift equipment so insufficient that he necessarily had to make some additions, but not shown to be required by reason of increase in the amount of mail. Indeed it is not shown that by reason of the change in the law there was any appreciable increase in the mails on this route during this four-month period. Such increase as might be assumed from the figures deduced as stated in the findings in.no manner enables a separation of normal increase from any increase occasioned by the change in the law, and it is not shown that there was any such increase during that period from any cause as to impose any serious burdens. There were fluctuations, increases followed by decreasés, a condition not apt to result from operation of the law, the time was too short after the law went into effect to have produced as yet any very marked change, and we are without proof that there was in fact any such increase as claimed.

Our general knowledge of domestic affairs tells us that at the time here involved speculation in mail contracts was prevalent, and all the circumstances of this case point to the assumption that Lockwood was a speculative contractor. There is nothing in his procedure that indicates any purpose on his part to operate this route, but quite early in the contract period there were indications of a purpose to sell it and finally of a specific purpose to sell it to Haley. This he did, receiving therefor $52,000. He had, of course, received the compensation called for by his contract for the four-month period; he received this $52,000 for the route and equipment, and in addition Haley paid him something over $15,000 for forage on hand along the route. The testimony shows that he received in this deal much more than the equipment and forage were worth, the difference, whatever it may have been, being to him a profit on the contract. The findings are to that effect.

If upon the proposition first discussed it is to be said that dismissal should have been ordered without further consideration on the merits, we must confess technical defect in procedure, but justify because of the peculiar jurisdiction conferred and the apparent desirability, under all the circumstances, that there should be expression on the merits of the case.

There are many facts set out in the findings with reference to compensation paid on this route both before and after the Lockwood contract and also upon another route in that locality to which we have not referred herein. They appear in the findings in response to plaintiff’s request.

We conclude that the plaintiff is not entitled to recover, that the petition should be dismissed, and it is so ordered. -

Graham, Judge; Hay, Judge; Booth, Judge; and Campbell, Chief Justice. concur.  