
    THE EVANSVILLE AND INDIANAPOLIS RAILROAD COMPANY v. THE UNITED STATES.
    [No. 17823.
    Decided October 25, 1897.]
    
      On the Proofs.
    
    Claimant contracts to carry tbe mails over a designated ronte of 57.70 miles, at tbe rate of $42.75 per mile per annum. Subsequently 40 miles of additional road are constructed and tbe service extended over it, and tbe compensation over tbe new part adjusted at $56.43 per mile. Claimant continues to accept $42.75 per mile over tbe old part without protest. Suit is now brought for tbe difference between $42.75 and $56.43 per mile from tbe time when tbe compensation on tbe new part was fixed.
    I. Where a railroad company is notified of tbe adoption of a rate of compensation for carrying tbe mails over a new portion of its road higher than that for wbicb it is carrying them on its present line, and makes no demand that tbe new rate bo extended to tbe old portion of tbe route but accepts payment at tbe old rate, it will be held to bave assented to that rate.
    II. Where a mail contract is made “subject to future orders” during tbe period of tbe contract, and no orders are made and no demand made on tbe Postmaster-General therefor, any presumption that a new rate fixed over a new part of tbe route applies to the old part is overcome by tbe acquiescence of tbe contractor in tbe rate previously fixed.
    
      The Reporters’ statement of tbe ease:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbe claimant, a corporation, operated continuously from December 1, 1886, to July 1, 1S88, a railroad running from Evansville to Washington, Ind., which was designated as mail route No. 22026, over which the claimant contracted to carry the mails of the United States for the period and at the compensation fixed in the following order:
    “1884, Sept. 4, No. 14060. Pay the Indianapolis and Evansville Railway Company quarterly, for carrying the mail between Washington and Evansville, Ind., from July 1,1884, to June 30,1887, at the rate of $2,492.32 per annum, being $42.75 per mile for 58.30 miles of transportation. This adjustment is subject to future orders and to fines and deductions.”.
    of which order the claimant was notified by the following communication:
    “ [2508. Circular — Notice of adjustment of pay.]
    “ Post-Oeeice Department, Oeeice oe the “Second Assistant Postjiaster-Genebal,
    “Railway Adjustment Division,
    “ Washington, D. G., September 4, 1884.
    
    “ Sir : The compensation for the transportation of mails, etc., on your road, route No. 22026, between Washington and Evansville, has been fixed from July 1,1884, to June 30,1887 (unless otherwise ordered), under acts of March 3,1873, July 12,1876, and June 17,1878, upon returns showing the amount and character of the service for thirty consecutive working days, commencing March 19,1884, at the rate of $2,492.30 per annum, being $42.75 per mile for 58.30 miles.
    * =& •* # #
    “ This adjustment is subject to fines and deductions.
    “ If the rate of pay or the route as stated is unsatisfactory, so state to this office at once; otherwise the Department will understand that you assent to this adjustment.
    “ Very respectfully,
    “G-. M. Sweney,
    
      “Acting Second Assistant Postmaster-General.
    
    “ Mr. O. J. Hepburn,
    “ Receiver, Indianapolis and Pvansville
    
    “ Railway, Pvansville, Ind.”
    
    The distance there stated was subsequently reduced to 57.70 miles because of certain service assumed by the defendants in the city of Evansville, not important here. No protest or objection appears to have been made by the claimant to the adjustment as above stated.
    II. Thereafter said railroad having been extended northward to Worthington, the Postmaster-G-eneral made the following order:
    “1886, July 20, No. 11604. From August 2, 1886, extend service from Washington, by Plainville, Elnora, and Newberry, to Worthington, Ind., increasing distance 40.60 miles, with the understanding that the rate of compensation will be adjusted in a subsequent order, in accordance with the law.”
    III. Thereafter, to wit, November 13, 1886, the following communication was sent to the claimant’s manager:
    “(2519)
    “Eailway Adjustment Division,
    “Post-Oepice Department, Oeeioe op the
    “ Second Assistant Postmaster-General,
    “ Washington, D. G., November 13,1886.
    
    “Sir: The General Superintendent Eailway Mail Service has been directed to weigh the mails on your road, route No. 22026, between Worthington and Evansville, Ind., for thirty successive working days, commencing December 1, 1886, for the purpose of obtaining the data upon which to adjust the pay in accordance with the several acts of Congress governing the same (see circular herewith), from August 2,1886, on extension to Worthington, and on whole route from date of weighing.
    “The weighing will be done under the supervision of agents of the Department, and the Department will be pleased to have you cooperate in the taking of the weights if you desire to do so.
    “Any information which you may desire on the subject will be furnished upon application by the Superintendent Eailway Mail Service for the division in which your road is located.
    ‘ ‘ Y ery respectfully,
    “A. Leo. Knott,
    “ Second Assistant Postmaster-General.
    
    “Mr. W. D. Ewing-,
    
      uGenH Manager Evansville and, Indianapolis B. B., Evcmsville, IndP
    
    IY. Pursuant to the notice given as stated in finding in, the mail matter transported over the whole of the claimant’s line of road from Evansville via Washington to Worthington, Ind., was weighed as therein slated, and it was ascertained therefrom that the daily average weight of mails so transported over the route was 393 pounds.
    Y. Thereafter the compensation over the extended portion of said route was fixed by the following order:
    “ 1887, April 15, No. 4585. From August 2,1886, add to pay at the rate of two thousand two hundred and ninety-one dollars and five cents ($2,291.05) per annum, being fifty-six dollars and forty-three cents ($56.43) per mile for 40.60 miles extension from Washington to Worthington. This adjustment is subject to future*orders and to fines and deductions.”
    
      The claimant, through its general manager, was notified of said adjustment for the first time by the following communication:
    “[No. 2508. Notice of adjustinentof pay. Railway adjustment division. Route No. 22026.]
    “ From-to-.
    “ POST-OEEICE DEPARTMENT, OEEICE OE THE
    “Second Assistant Postmaster-General,
    “ Washington, D. 0., April 15,1887.
    
    “ Sir : The compensation for the transportation of mails, etc., on the extension of route No. 22026, between Washington and Worthington, Ind., has been fixed from Aug. 2,1886, to June 30, 1888 (unless otherwise ordered), under acts of March 3 1873, July 12,1876, and June 17,1878, upon returns showing the amount and character of the service for thirty successive working days, commencing Dec. 1,1886, at the rate of $2,291.05 per annum, being $56.43 per mile for 40.60 miles.- - “This adjustment is subject to future orders and to fines and deductions. •
    “Very respectfully, G. M. Sweney,
    
      “Acting Second Assistant Postmaster-General.
    
    “Mr. W. D. Ewing,
    “ General Manager Evansville and Indianapolis
    
    , B. B., Evansville, Ind?'
    
    Thereafter, July 6,1887, the following order was made:
    “1887, July 6, No. 11205. Modify previous orders so as to continue service and pay therefor from July!, 1887, to June 30,1888.”
    Thereafter the claimant, without protest or objection, continued to carry the mails at the rates of compensation theretofore fixed over the several portions of the route as above stated.
    VI. The rate of compensation theretofore fixed at $42.75 for the mails transported over the original route, i. e., from Evansville to Washington, remained without further adjustment, though the daily average weight of mail matter transported thereon was the same as that transported over the extended portion.
    At the time of the receipt of the communication fixing the rate of compensation over the extended portion of said route as aforesaid, nor thereafter until August 20,1890, no protest or objection was made by the claimant because of the failure of the Postmaster-General to fix a like compensation for transporting the mails over the original portion of said route. On said last date, and after the expiration of the contract, the claimant, through, its attorney, asked a readjustment of the compensation from Evansville to Washington, which was refused.
    VII. The claimant performed its part of the contract with the defendants in transporting a like daily average weight of mail matter over the entire route from Evansville to Worth-ington, for which it was paid at the several rates of compensation, i. e., from Evansville to Washington, $42.75, and from Washington to Worthington, $56.43.
    If the claimant is entitled to recover for the like daily average weight of mails transported from Evansville to Washington as from Washington to Worthington, by reason of the weighing of the mails as per the communication set forth in finding in, which was concluded about January 1,1887, the amount would be the difference between $42.75 and $56.43 per mile from that date (January 1, 1887) to July 1,1888, less $58 deductions, being the pro rata deductions of $97 on entire route as extended, leaving $1,126 due claimant, if entitled to recover as above.
    VIII. If the claimant is entitled to recover $56.43 per mile from Evansville to Washington until the receipt of the notice of April 15,1887, set forth in finding v, then the amount that would be due it, less deductions as aforesaid, would be $47.88, being the difference between the rates stated from January 1 to April 15,1887.
    
      Mr. J. W. Blackburn, jr., for the claimant.
    The contract could have been terminated at any time by either party. (See Basten B. R. Go. v. TJ. 8., 20 C. Cls. E., 23, 43; affirmed by the Supreme Court, 129 U. S., 391.)
    The Postmaster-General, in the exercise of his right, determined, on November 13,1886, to terminate this contract and make a new one. In pursuance of this the claimant was informed that the mails would be weighed for thirty days, commencing December 1,1886, for the purpose of obtaining data upon which to.readjust the rate of pay over the entire route from December 1,1886.
    The phrase “on the whole route from date of weighing,” holding no special significance in the opinion of counsel for defendant, was inserted in writing in a printed contract. When a contract is partly in print and partly in writing, the written portion will be deemed the part more carefully consid • ered by the parties. (Merriani’s Case, 14 C. Cls. E., 289.)
    
      . Counsel for defendant asserts that it is stretching and straining- the phrase “and on the whole route from date of weighing” to have it mean that the Government expected to readjust on the whole route, when the reason for the notice of November was primarily to fix the rate on the new part of the route. The meaning to be put on a contract is that which is the plain, clear, and obvious result of the terms used therein.
    This phrase was inserted by the Postmaster-General, leaving to the company no choice as to form or phraseology; and even if there is any uncertainty as to its meaning, that construction must be adopted which is more to the advantage of the claimant. Authority for this is found in Noonan v. Bradley (9 Wallace, 407), and the case of Otis v. United States (20 G. Cls. E., 327) and Chambers’ Case (24 C. Cls. E.; 387).
    In the Eastern B. B. Co. Case (20 C. Cls. E., 44) the court called attention to the fact that the significant qualifying-words “ unless otherwise ordered ” followed immediately after the specification of time. I beg to call especial attention to the fact that in the notice of adjustment of pay, dated April 15,1887, the words “this adjustment is subject to future orders ” stand immediately after the specification of the compensation for service.
    The communication of November 13, 1886, "constituted an offer on the part of the Postmaster-General changing, after December 1,1886, the previously existing contract relations between the parties, and it was accepted in good faith by the company.
    
      Mr. John G. Capers (with whom was Mr. Assistant Attorney-General Bodge) for the defendants.
   Pbelle, J.,

delivered the opinion of the court:

The findings present the question as to whether the claimant is entitled to recover the difference between $42.75 and $56.43 per mile per annum for transporting the mails of the United States from Evansville to Washington, Ind., a distance of 57.70 miles, from January 1,1887, to July 1, 1888.

The road as originally constructed was operated between Evansville and Washington, and was designated as postal route No. 22026, over which the claimant contracted to carry the mails at $42.75 per mile per annum from July 1,1884, to June 30, 1887, “subject to future orders and to fines and deductions.”

Subsequently tbe road was constructed northwardly to Worthington, a distance of 40.60 miles, over which the service was extended July 20,1886, to take effect from August 2,1886, the rate of compensation to be thereafter adjusted.

Thereafter the defendants, through the Second Assistant Postmaster-General, issued and directed to the claimant, as therein stated, the following communication:

u [2519. Railway adjustment division.]
“ Post-Office Department, Office of the “Second Assistant Postmaster-General,
“ Washington, I). G., Nov. 13,1886.
“Sir: The General Superintendent Bail way Mail Service has been directed to weigh the mails on your road, route Ko. 22026, between Worthington and Evansville, for thirty successive working days, commencing Dec. 1, 1886, for the purpose of obtaining the data upon which to adjust the pay in accordance with the several acts of Congress governing the same (see circular herewith), from Aug. 2, 1886, on extension to Worthington and on whole route from date of weighing.
“ The weighing will be done under the supervision of agents of the Department, and the Department will be pleased to have you cooperate in the taking of the weights if you desire to do so.
“Any information which yon may desire on the subject will be furnished upon application by the superintendent Eailway Mail Service for the division in which your road is located.
“Very respectfully,
“A. Leo Knott,
Second Assistant Postmaster-General.
“Mr. W. D. Ewing-,
Genii Manager Evansville and
“Indianapolis It. It., Evansville, IndP

As therein stated, the mails were weighed between Evansville and Worthington, and it was ascertained thereby that the daily average weight of mail matter transported over the route was 393 pounds; and in accordance therewith the rate of compensation over the extended portion of said route, from Washington to Worthington, was fixed at $56.43, “subject to future orders and to fines and deductions.”

The rate of compensation theretofore fixed for transporting the mails from Evansville to Washington remained unadjusted, though the daily average weight of mail matter transported thereon was the same as that transported over the extended portion.

Of tbe adjustment so made over the extended portion of the . route the claimant was notified, April 15, 1887, and it continued thereafter to transport the mails at the rates fixed without objection.

Subsequently previous orders were modified “ so as to continue service and pay therefor from July 1,1887, to June 30, 1888,” and this service was performed by the claimant, at the several rates of pay above stated, without objection.

The claimant was under no legal obligation to carry the mails over its road, but contracted to do so between Evansville and Washington, Ind., for a specified time at the rate of compensation thereafter fixed at $42.75 per mile, subject to future orders, upon the basis of the “returns showing the amount and character of the service for thirty consecutive working days,” to which rate the claimant assented, performed the service, and was paid without objection or protest.

The claimant contends, however, that the communication of November 13,1886, directing the mails to be weighed between Evansville and Worthington was “for the purpose of obtaining the data upon which to adjust the pay” * * * “on the whole route from date of weighing,” as well as on the “ extension to Worthington” from August 2,1886, and that, the mails having beeu weighed in accordance therewith, and the daily average weight of mail matter thereby ascertained to be 393 pounds, it is entitled to the same rate of compensation for transporting the mails from Evansville to Washington it was allowed and paid for like service between Washington and Worthington.

The defendants contend that the rate of pay ($42.75) fixed for transporting the mails between Evansville and Washington from July 1, 1884, to June 30, 1887, “subject to future orders and to fines and deductions,” which was accepted and acted upon by the claimant, was binding until otherwise ordered, and that, no orders having been made changing the rate between Evansville and Washington, and the claimant having, notwithstanding the communication referred to and the weighing of the mails thereunder and the fixing of the rate on the extended portion at the rate of $56.43, continued to transport the mails at the several rates fixed, not only to June 30,1887, but thereafter, under an extension of its contract, to June 30, 1888, without objection, it is now too late to demand additional Compensation, whatever its rights at the time of such adjustment might otherwise have been.

By the act March 3, 1873 (17 Stat. L., 558), now Eevised Statutes, section 4002, “ the Postmaster-General is authorized and directed to readjust the compensation hereafter to be paid for the transportation of mails on railroad routes upon the conditions and at the rates” therein stated, among which is “that the pay per mile per annum shall not exceed” the rates therein stated, based upon the “ average weight of mails per day,” such “average weight to be ascertained, in every case, by the actual weighing of the mails for such a number of successive working days, not less than thirty, at such times, after June 30, 1873, and not less frequent than once in every, four years, and the result to be stated and verified in such form and manner as the Postmaster-General may direct.”

By the act March 3,1875 (18 Stat. L., 341), the Postmaster-General was “directed to have the mails weighed as often as now provided by law by the employees of the Post-Office Department, and have the weights stated and verified to him by said employees under such instructions as he may consider justto the Post-Office Department and the railroad companies.”

By the act of July 12, 1876 (19 Stat. L., 78; Supp. to R. S., vol. 1, p. 110), the Postmaster-General was authorized to “readjust the compensation to be paid after July 1, 1876, for the transportation of mails on railroad routes, by reducing the compensation to all railroad companies for the transportation of mails 10 per cent per annum from the rates fixed and allowed by the first section of the act of March 3, 1873.” (Rev. Stat., § 4002.)

By the act of June 17,1878 (20 Stat. L., 140; Supp. to R. S., vol. 1, p. 187), the Postmaster-General was further authorized and directed to reduce the rate of compensation 5 per cent per annum from and after July 1, 1878.

In the case of the Chicago and Northwestern Railway Company v. United States (104 U. S., 680), a road aided in part by grants of public lands, a contract was entered into to carry the mails for four years from September, 1875, subject to the right of the Postmaster-General to “ curtail the service in whole or in part whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any cause,” etc.

Before tbe expiration of tbe term of tbe contract tbe Postmaster-General, pursuant to tbe acts of 1876 and 1878 (supra), reduced tbe rate of compensation, to wbicb reduction the company protested, but performed tbe service, and then brought its action to recover for sucb reduction, tbe court held that tbe company was entitled to recover, as these acts did not apply to contracts theretofore made.

In tbe latter case of Eastern Railroad Company v. United States (129 U. S., 391, 396), a contract was entered into by wbicb tbe company agreed to carry tbe mails for four years from June 30, 1877, at a stipulated rate, “unless otherwise ordered.”

On tbe 1st of July, 1878, tbe Postmaster-General reduced tbe rate 5 per cent under tbe provisions of tbe act of 1878 (supra), to which tbe company made no objection and continued to carry tbe mails for tbe rest of tbe term and received pay at tbe reduced rates, after wbicb tbe company brought suit to recover tbe amount of tbe reduction.

Tbe court held, affirming tbe judgment of this court (20 G. Cls. R., 23), that there was no contract to carry tbe mails for four years at fixed rates, as tbe rates agreed upon were subject to future orders of tbe Postmaster-General; that tbe company might have refused to carry tbe mails at the reduced rates, but having carried tbe mails at sucb reduced rates without protest or objection, it may be justly held to have assented thereto. Tbe difference between tbe two cases cited, tbe court say, is “that in tbe former tbe company bound itself to carry tbe mails during a certain period, and consequently its acceptance from time to time during that period of less than it was entitled to demand did not prejudice its right to claim what was legally due under its contract; whereas in tbe present case (Eastern Railroad Company) tbe company could have declined to accede to tbe readjustment of rates when they were made.”

In tbe case at bar, however, no readjustment was made in respect of tbe compensation between Evansville and Washington after tbe weighing of tbe mails under tbe communication of November 13, 1886, but was as to tbe rate of compensation over tbe extended portion of tbe route, of which tbe claimant was notified April 15, 1887, and thereafter without objection tbe company continued to carry tbe mails between Evansville and Washington at tbe rates originally fixed therefor, not only during tbe period of its original contract, but for one year’s extension thereof.

The failure of the company to protest because the order of readjustment, after the weighing as aforesaid, was not made to apply to the compensation between Evansville and Washington, and no demand having been made therefor, it must be held that the company not only assented to the rate as originally fixed for carrying the mails between Evansville and Washington, but assented to a continuance of such rate during the term of its contract, thereby construing its own action as favorable to the rate fixed.

In this view of the case, it may be said' that from the time the claimant received the communication of November 13,1886, it had a right to presume that, after the weighing of the mails as therein provided, the Postmaster-General would make an order based thereon, adjusting the compensation to be paid “on the whole route from date of weighing;” and that, until the receipt of the letter of April 15,1887, advising it that an order had been made fixing the compensation on the extension only, it could not have protested or objected, and that therefore it is entitled to the same rate of compensation “ on the whole route from date of weighing ” to April 15,1887.

This is open to the objection, however, that the rate fixed by the Postmaster-General was to stand, “subject to future orders,” during the period of the claimant’s contract, and no orders having been made in respect of any change of the rate so fixed and no demand having been made upon the Postmaster-General therefor, such presumption, if then rightly existing, was overcome by the claimant’s acquiescence in the rate previously fixed; and the company must therefore beheld to the contract it made, though seemingly the equities of the case are with it.

For the reasons given the petition is dismissed.  