
    LUTHER CLAY SLAVENS v. THE UNITED STATES.
    [No. 21973.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    The claimant is the contractor for mail-messenger service in Boston and other towns. The contracts are identical in substance with those in previous cases, Otis (20 C. Cls. B.., 315), Union Transfer Co. (36 id., 216), etc., except that in one instance the usual right of the Postmaster-General to rescind a contract ‘ ‘ in part ’ ’ is not reserved, but only the right to rescind “the entire contract." As in previous contracts the contractor is bound to perform “ all new or additional mail messenger, transfer, and mail-station service" the Postmaster-General may order ‘ ‘ at the city of Boston" ‘ ‘ without additional compensation, whether earned by change of location of post-office, stations, landing, or the establishment of others."
    
    I.Where a mail-messenger contractor was directed by the postmaster at Boston to carry the mails to an office outside of the city and beyond the territory for which he was to furnish wagon service, he can not recover for it, though the service was not disapproved by the Postmaster-General. Mott, Ch. J., dissenting.
    II. Where a contract required the contractor “to perfonn all new or additional or changed covered regulation wagon mail, messenger, transfer, and mail-station service that the Postmaster-General may order at the city of Boston, Mass., during the contract term, without additional compensation, whether caused by change of location of post-office, stations, landing, or the establishment of others" and a new system was introduced of carrying mails to and from street cars, instead of to and from stations, the service is not an extra and different service for which the contractor can recover. Mott, Ch. J., dissenting.
    III. Where a contract provided “that the Postmaster-General may discontinue the entire service whenever the public interest, in Ms judgment, shall require such discontinuance; but for a total discontinuance of service the contractor shall be allowed one month’s extra pay as full indemnity. ’ ’ The Postmaster-General had the right to discontinue the contractor’s performance of it, though the service itself was not discontinued and was continuously performed by another contractor, the discontinuance being in fact ordered because the contractor would not consent to a reduction of the service. The measure of damages for such a discontinuance is the one month’s pay as provided by the contract and not the profits which (he contractor might have made.
    
      
      The Reporters’ statement of the ease:
    The following are the facts of the case as found by the court:
    I. The claimant is a citizen of the United States, and a resident of Kansas City, in the State of Missouri.
    II. That on September 15, 1892, the then Postmaster-General of the United States, acting therein on behalf of the United States, advertised for proposals for transporting the mails in various cities, and among others, on route No. 204001, being the “covered regulation wagon mail messenger, transfer, and mail-station service,” at the city of Boston, Mass.
    III. That pursuant to said advertisement and the several matters therein contained, claimant made and filed with the Department a proposal for the performance of said service, consisting of transporting the mails at and in said city of Boston for the period named in said advertisement, to wit, from July 1, 1893, to June 30,1897, inclusive, naming as the compensation to be received by claimant therefor the sum of $49,516 per annum; that said bid was duly accepted by the Department, and thereafter, on December 21, 1892, claimant entered into a contract with the United States for the performance of said service during the period aforesaid, and thereupon he engaged in the carrying of the mails aforesaid under said contract, a copy of which contract appears in the petition.
    IY. During the time claimant performed the service under said contract the defendant required him to transport the mails between the mailing room and basement of the general .post-office, at said city of Boston, and the stopping place of West End Street Kailway Company, on Water street, in said city, from May 1,1895, to February 1,1896, requiring the emploj^-mentby claimant, in the rendition of such service, two wagons, two horses,- and two drivers, and sometimes an extra wagon.
    The cláimant protested against the performance of these services to the postmaster at Boston, but no protest or objection was made to the Postmaster-General, nor to any person connected with the Post-Office Department at Washington. If entitled to recover for these-services, the reasonable value thereof is $274.55.
    
      A". During- the term of said contract claimant was directed the postmaster at the city of Boston to transmit the mails between what was known as the Back Bay post-office and the Brookline post-office, a distance of from 2i to 3 miles, the latter post-office being outside of the city limits of Boston, and situated in an independent town, and which said service was not embraced within the terms of said contract. That claimant objected to the performance of this service to the postmaster at Boston, but did not make anj^ protest to the Postmaster-General nor to any officer of the Post-Office Department, nor was the Postmaster-General nor any officer of the Post-Office Department apprised of the fact of the performance of this service l>v the claimant until August 14,1894. Upon being apprised of the performance of this service by the claimant the Postmaster-General promptly ordered its discontinuance and entered into contract to have the sam >■ performed bjr another person, for which payment was made to said other person. If entitled to recover for these services, the reasonable value is $462.50.
    ArI. That on December 9,1895, and during the term of said contract, defendant ordered claimant to discontinue the service so being performed bj^ him on said route No. 204001, and, pursuant to said order, claimant was compelled to discontinue the performance of said service on January 31, 1896.
    A copy of said order to discontinue is as follows:
    “WASHINGTON, D. C., December 9, 1895.
    
    “Sir: You are informed that the following order has this day been issued on route No. 204001 — covered regulation wagon mail messenger, transfer, and mail station service at Boston, Mass.:
    “‘From Januaiy 31, 1896, discontinue service, allowing contractor one month’s extra pay.’
    “Very respectfully,
    “C. NeilsoN,
    
      “Second Assistant Postmaster-General.
    
    “Mr. Luther Clay Slavens,
    
      “Kansas Oity, Jackson County¡ Mo."
    
    VII. That said order to discontinue said service under the contract aforesaid was not made on account of any neglect or default on the part of claimant in the performance of said contract. The right was asserted by defendant to so order claimant to discontinue the service under the clause contained in said contract providing “that the Postmaster-General may discontinue the entire service whenever the public interest, in his judgment shall require such discontinuance.” Claimant had been previously offered the privilege of continuing the service at a reduction from the contract rate, which he declined.
    VIII. That thereupon, in order to have the service thus reorganized performed, against the protest and objection of claimant, and without his consent, defendant ordered claimant to discontinue said service and thereafter defendants relet the same service (as decreased, as aforesaid) under said route No. 201001, to another for the balance of said contract period, namely, from Februaiy 1, 1896, to June 30,1897, inclusive, a period of seventeen months, at a compensation of $37,000 per annum, said route being designated in said Skinner contract as No. 204002, and that said service was thereafter con-tinuousty performed by such other during the remainder of the contract period aforesaid.
    IX. If the claimant is entitled to recover damages, as for a breach of the contract, because of its annulment prior to the period therein named, the measure of damages would be the sum of $18,884.14, less the one month’s extra pay paid upon said contract, to wit, the sum of $4,126.33, leaving the amount to be recovered $14,757.81.
    X. On September 15,1892, the then Postmaster-General of the United States, acting therein on behalf of the United States, also invited proposals for transporting the mail on route No. 207001, being the “ covered regulation wagon mail messenger, transfer, and mail station service,” at the city of Brooklyn, State of New York.
    XI. Pursuant to said advertisement and the matters therein contained, claimant made and filed with the Department a proposal for the performance of said service, consisting in can-ying the mails in said city of Brooklyn for the period named in said advertisement, namely, from July 1, 1893, to June 30, 1897, inclusive, naming as the compensation to be ■received by claimant therefor the sum of $18,984 per annum; that said bid was duly accepted by said Department; and thereafter, on December 21, 1892, claimant entered into a contract with the United States for the performance of said service during the period aforesaid; and thereupon claimant engaged in the carrying of the mails aforesaid under and in pursuance of said contract.
    A true copy of said contract appears in the petition.
    XII. During the claimant’s term of service at Brooklyn, N. Y. (from December 18, 1895), and in order to provide that city with improved mail facilities, the Post-Office Department established mail service on the Brooklyn Heights Railroad (railway routes Nos. 207805 and 207807) — a street-car line— for the transportation in the cars of that company of the mails from the vicinity of the post-office to the vicinity of the postal stations E, W, and G, and the Long Island Railroad at Long Island City (Manhattan avenue and Box street).
    The service thus established dispensed ivith the service theretofore required of claimant under his contract for the transportation of mails over the routes covered by said streetcar line. In lieu of this service the claimant was required to perform service between the post-office and the mail route established on the street-car line and between said mail route and the mail stations. The same mails theretofore required under his contract to be transported over long distances were thereby reduced to very shorter distances.
    The service theretofore required of the contractor under his contract and the advertisement, of which he was relieved, and the service required of him in lieu thereof, is, in detail, as follows:
    (5) The service under the advertisement was: General post-office to Station E, distance 5.38 miles, 36 round flips per week. The service required in lieu thereof was: Station E to Brooklyn Heights Railroad (Alabama avenue), 0.23 of a mile, from December 18, 1895, 119 round trips per week.
    The miles of travel of which the claimant was relieved was 4,298.66. .
    The miles of travel required in lieu thereof was 143.56, a reduction in miles of travel of 4,155.01.
    
      
      (a) From December 18, 1895, claimant was required to perform further service to Station E in lieu of the service theretofore required, such new service being from Manhattan Crossing to Station E, 0.38 of a mile, 18 round trips per week. Manhattan Crossing was a railroad station on a railroad route, No. 107121, and was in existence at the time the claimant made his contract. The service was provided for by-paragraph 2 of the advertisement and provisions of the contract, section 10.
    (e) The service required under the advertisement was: Station G to Station W, 1.65 miles, 50 trips per week; Station W to Station G, 1.65 miles, 57 trips per week. The service ■required of claimant in lieu thereof was: Station G to Brooklyn Heights Railroad (Manhattan and Green Point avenues), 0.06 of a mile (from December 18, 1895), 118 trips per week; Brooklyn Heights Railroad to Station G, 0.06 of a mile (from same date), 119 trips per week. The miles of travel of which the claimant was relieved was 1,855.92; the miles of travel in lieu thereof was 149.48, making a net reduction in miles traveled of 1,706.44.
    
      (cl) The service required under the advertisement was: General post-office to Station W, distance 2.57 miles, 70 round trips a week. The service required of claimant in lieu thereof was: Station W to Brooklyn Heights Railroad (Bedford avenue and Broadway), 0.08 mile (from December 18, 1895), 232 trips a week. The miles of travel of which claimant was relieved was 3,782.14; the miles of travel in lieu'thereof was 389.98; a reduction in miles of travel of 3,392.16.
    
      (e) The service required under the advertisement was: General post-office to Long Island Railroad at Long Island City, via Stations S, W, and G, 8.10 miles, 6 trips a week.' Long Island Railroad at Long Island City, via Stations G and W, to general post-office, 5.04 miles, 12 trips a week.
    The service required of complainant in lieu thereof-was: Long Island Railroad at Long Island City to Brooklyn Heights Railroad, 0.61 mile (from December 18, 1895), 36 round trips a week.
    The miles of travel of which the claimant was relieved was 1,437.82; the miles of travel required in lieu thereof was 461.76, a reduction in miles of travel of 976.06.
    
      Further, during the claimant’s term of contract at Brooklyn, the Department authorized and established regular railroad service on the Brooklyn Heights Railroad on route 107172, terminating in the city of Brooklyn.
    It became necessary, in consequence of the establishment of said railroad route, to provide service between the general post-office and the terminus of such route at Fulton and Johnson streets, and the claimant was required to provide for same.
    Details of the service required are as follows:
    (/“and h) General post-office to Brooklyn Heights Railroad, Fulton and Johnson streets, 0.1 mile (from May 8, 1895), 81 trips a week. Brooklyn Heights Railroad, Fulto 1 and Johnson streets, to general post-office, 0.1 mile, 57 trips a week.
    This service was properly required under paragraph 2 of the advertisement and provisions of the contract, and the tenth section of same.
    Further, during the claimant’s term of contract at Brooklyn, the Department authorized regular railroad service on the Brooklyn Heights Railroad' on route 107143, terminating in the city of Brooklyn.
    It became necessary, in consequence of the establishment of said railroad route, to provide service between the general post-office and the terminus of said route at Fulton and Johnson streets, and the claimant was required to provide for the same.
    Details of the service required are as follows:
    
      (g) General post-office to Brooklyn Heights Railroad, 0.1 mile (from January 7, 1895), 38 round trips a week.
    This service was properly required under paragraph 2 of the advertisement and provisions of the contract, and the tenth section of same.
    Further, during the claimant’s term of contract at Brooklyn, the Department authorized regular railroad service on the Brooklyn, Bath and West End Railroad on route 107076, terminating in the city of Brooklyn.
    This new railroad route superseded mail messenger route 207066, which was operated theretofore by the same railroad company, and terminated 3.66 miles from the post-office, between which points the claimant had been required under the advertisement to perform service.
    
      Department required the claimant to provide for the service between the general post-office and the terminus of the railroad route, 0.01 of a mile, instead of between the general post-office and the mail messenger route, 3.66 miles. The same mails were carried and to the same road, but to a new and nearer terminus.
    Details of the service superseded and that required in lieu thereof are as follows:
    (i) The service required under the advertisement was: General post-office to Brooklyn, Bath and West End Railroad, 3.66 miles, 18 round trips a week.
    The service required of claimant in lieu thereof was:
    Same service (from June 25, 1894), but over a distance of Ó.01 mile instead of 3.66 miles.
    The miles of travel of which claimant was relieved was 11,506.01; the miles of travel required in lieu thereof was 31.38; a reduction in miles of travel of 11,474.63.
    Even if it were not considered the same service, the requirement as to performance of which was more advantageous to claimant, it was, nevertheless, properly required under paragraph 2 of the advertisement and provisions of the contract and the tenth section of same.
    In every instance, excepting those covered by claims/) g, and A, the service required was the same service theretofore performed, but for a less distance, and in cases of claims./, <7, and A, it "was new service to new stations. In case covered by claim i it was to a new route and station, as well as being the same service.
    If the claimant could recover for service specified in claims a to i, the nieasure of such recovery would not exceed the fair value of same, which is shown by the amounts paid contractors who immediately succeeded claimant’s service, as follows:
    Claims a and b, $142.01.
    Claim c, $91.30.
    Claim <l, $111.58.
    Claim c, $60.96.
    Claims f, <7, and A, service was subsequently covered by-general contract for regulation wagon service.
    Claim i, $840.66.
    XIII. That on January 21, 1896, and during the term of said contract, defendant ordered claimant to discontinue the service so being performed by him on said route No. 207001, and pursuant to said order claimant was compelled to discontinue the performance of said service on March 1, 1896.
    A copy of said order to discontinue is as follows:
    “Post-Office Department,
    
      “January 81, 1896.
    
    “Route 207001.
    “Order No. 1132.
    “Discontinue service from February 29, 1896, and allow contractor one month’s extra pay.
    (Signed) “Wm. L. Wilson,
    ‘‘Postmaster- General.’’
    XIV. That said order to discontinue said service, described in the contract aforesaid, was not made on account of any neglect or default on the part of claimant in the performance of said contract. The right was asserted by the defendants to so order claimant to discontinue said services under the clause contained in said contract providing “that the Postmaster-General may discontinue the entire service whenever the public interest, in his judgment, shall require such discontinuance.”
    There was, however, no discontinuance of the service in carrying the. mails on said route. Claimant had been previously' offered the privilege of continuing the service at a reduction from the contract rate in the Boston case, which he declined.
    XV. That thereupon in order t'o have the service as thus reorganized performed against the protest and objection of claimant and without his consent, defendants ordered claimant to discontinue said service (supra), and immediately thereafter defendants relet the same service (as decreased, as aforesaid), under said route No. 207001, to another for the balance of said contract period, namely, from March 1, 1896, to June 30, 1897, inclusive, a period of sixteen months, at a compensation of $9,720 per annum, said route being designated in said Chilton contract as No. 2070O1, and that said service was thereafter continuously performed by such other during the remainder of the contract period aforesaid.
    XVI. On September 15,1893, the then Postmaster-General of the United States, acting therein for and on behalf of the United States, advertised for proposals for transporting the mails in various cities, and, among others, on route bio. 257001, being the “covered regulation wagon mail messenger, transfer, and mail station service ” at the city of Omaha, State of Nebraska.
    XVII. Pursuant to said advertisement and the matters therein contained, claimant, under the name of Luther Clay Slavens, jr., hied with the Department a proposal for the performance of said service, consisting of carrying the mails in said city of Omaha for the period named in said advertisement, to wit, from July 1, 1894, to June 30, 1898, inclusive, naming as the compensation to be received by claimant therefor the sum of $3,780 per annum; that said bid was duly accepted by the Department, and thereafter,,on December 21, 1893, claimant, under the name of Luther Clay Slavens, jr., entered into a contract with the United States for the performance of said service during the period aforesaid.
    A true copy of said contract' appears in the petition.
    XVIII. During the term of claimant’s contract for services in Omaha the Post-Office Department authorized and established two new railroad mail routes in that city, operated by the Omaha Street Railway Company, one between the Union Depot and the Omaha post-office, Fourteenth and Dodge streets, and the other between Fourteenth and Dodge streets and South Omaha. One end of each of these routes terminated at Fourteenth and Dodge streets, which was a junction and transfer point, such as is usual with street-car lines in cities for the accommodation of the public, and the other end of one of these routes terminated at the Union Depot.
    After the establishment of a railroad route between these points a large amount of the service theretofore performed by claimant in wagons between the points was thereafter performed by the street railway company over the railroad route. By reason of the establishment of these new railroad routes it became necessary to provide service between their termini at Fourteenth and Dodge streets and the post-office, between the two routes (transfers) at that point, and between the terminus of one route and the Union Depot. Though not so ordered, this service was in part performed in lieu of such service between the general post-office and the Union Depot, of which the claimant had been relieved by reason of its performance by the street oar company on the newly established railroad route.
    The amount of service of which the claimant was thus relieved was 176.6 miles of travel per week, while the amount which was required of him in lieu thereof was 41.06 miles of travel per week — an actual reduction of 132.54 miles per week. Though the subsequent advertisement of the service included all that the claimant performed, and besides considerable other service which he did not perform (service which had been theretofore included under a mail-messenger route), yet the claimant’s own estimate of the value of .the combined service was only $347 per annum more than he was being-paid for the lesser service; and out of the lowest nine bidders seven of them estimated by their proposals the value of the combined service at less than the amount which the claimant was being paid for the lesser service, the lowest bidder, and to whom the service was subsesequently awarded, being $1,130 less.
    The service thus established was a mere substitution of another manner of performing the same service contracted for and at an advantage to the claimant, and was otherwise properly required under paragraph 2 of the advertisement and provisions of the contract and the tenth section of the same.
    
      Mr. A. A. Hoehling, jr., for the claimant.
    
      Mr. George 1L Gorman (with whom was Mr. Assistant Attorney- General Pradt (for the defendants.
   Wright, J.,

delivered the opinion of the court:

As may be discovered by reference to the findings of fact, the claimant herein was given three separate contracts for the transportation of mails in covered regulation mail wagons, one in Boston, another in Brooklyn, and still another in Omaha.

There are items for compensation in the cases of all the contracts for service, claimed to have been rendered at defendants’ request outside the terms of the contracts, as it has been alleged, and much argument has been urged upon our attention in support and refutation of the respective contentions of the parties in this regard. In addition to these items of so-called extras, the claimant insists upon compensation for carrying the mails between Back Bay and Brookline post-offices, the latter being outside the city of Boston; but as this service was performed without the knowledge or request of anyone haying defendants’ authority, this item, it is plain, can not be allowed, and it will be dismissed from the case without further notice. (Whitsell v. United States, 34 C. Cls. R., 5.)

The chief claim growing out of the Boston and Brooklyn contracts is for a discontinuance by the Postmaster-General of all the service described in, and which was being performed under, those contracts, resulting, as has been argued by claimant, in a breach of the contracts by the defendants, and consequent damage to. him; Both the right of the claimant to compensation for alleged extra services, and to damages for the termination of the services of the claimant, as was done, may be disposed of by correct interpretations of the contracts themselves.

In every essential particular, as relates to the points in question, the contracts are alike, and in them claimant agreed to perform all new, or additional, or changed covered regulation wagon, mail-messenger, transfer, and mail-station service that the Postmaster-General might order during the contract term, without additional compensation, whether caused by change of location of post-office, stations, landing, or the establishment of others than those existing at the date of the contract, or rendered necessary, in the judgment of the Postmaster-General, for any cause, and to furnish such advance wagons or extra wagons from time to time for special or advance trips as the Postmaster-General might require as a part of such new or additional service; that the Postmaster-General might change the schedule and termini of the route, vary the routes, increase, decrease, or extend the service thereon, without change of pay; and that the Postmaster-General might discontinue the entire service whenever the public interest, in his judgment, should require such discontinuance, but for a total discontinuance of service claimant should be allowed one month’s extra pay as full indemnity.

In support of the right to recover for the items of extra service, as he has described them, claimant has produced argument to prove that such services were extra services, as distinguished from new, or additional, or changed service, described in the contracts, for which no additional compensation should be given. The service so described was such as might be rendered necessary for an}' cause, in the judgment of the Postmaster-General. It must, of course, be connected with, or an incident to, the covered wagon mail-messenger, transfer, and mail-station service, for such only is the subject-matter of the contracts. It is easily seen that the extra service claimed for readily falls within the class or description of service specified in the contracts, or in part of, or incident to such service, rendered necessary for some sufficient cause. The discretion or judgment of the Postmaster-General, given b}r the contract, to determine the necessity of such service,, ought not to be questioned, unless to prevent unwarranted or unjust interruptions of the contract rights vested in the claimant. It will not be presumed that officer required the performance of services not demanded by the exigencies of the business. Nothing appearing to the contrary, it will be assumed that the service required was necessary to the proper administration of the powers conferred by law upon the head of the Department, which was clearly reserved by the stipulations contained in the contracts. The distinction endeavored to be pointed out between extra services and new and additional services is not seen. Extra or additional services are synonymous. There can be no difference in the meaning of the words, and whether called by the one or the other name' the services equally fall within the description given to them by the contracts.

It is also insisted that the change of part of the service from covered regulation wagon to street-railway service was unwarranted by the contract. We are unable to give effect to the terms of the contract giving authority to vary the routes, increase or decrease or extend the service thereon, without supporting the change to street-railway service, the only effect of which was-to decrease the service undertaken by claimant, and which was clearly authorized by the contracts. The cause or reason why such change, or decrease of service, might be made was not stated in the contracts, but left to the discretion of the Postmaster-General. It is true the contract provided that such decrease was to be without change of pay, and if this was the only provision of the contract in this regard, there would be much force in claimant’s contention, but all the provisions of the contracts must be considered and given the effect intended by the parties when thoj' were entered into.

After the service had been decreased, as stated, the Postmaster-General submitted to claimant a proposition, or suggestion, that he voluntarily relinquish part of the contract price for the continued performance of the services remaining after the change of a part thereof to the street railways, but claimant declined, in which, no doubt, he was clearly within his rights. In other words, he was under no obligation, under the contracts, .to continue at a reduced price. So, therefore, the proposition and its rejection had no effect whatever upon the rights of either party, as defined by the contracts, and such were left to be detérmined bjr the provisions thereof, according to the terms and stipulations contained therein. The contracts gave to the Postmaster-General authority to discontinue the entire service whenever the public interest, in his judgment, should require such discontinuance, the claimant in such case to be allowed one month’s extra pay as full indemnity, and this he did in the Boston and Brooklyn contracts.

Against this action of that officer it is argued that he discontinued the service because claimant declined to continue at a reduced rate, but we have not found the action of the officer was so influenced.. We must presume, nothing appearing to the contrary — and it does not — such action was influenced solely because, in his judgment, the public interest required the discontinuance of claimant’s services under the contracts in question. We can see, also, there was good reason for such conclusion. The service had been rightfully decreased, under the stipulations of the contracts, until the services remaining to be performed were not reasonably worth the original contract rate, and to have continued its payment would have been contrary to public interests, and, while claimant was under no obligation to continue in -the service at a reduced rate, the head of the Department was obligated, as well by the duties of his high office as the provisions of the contract, to subserve the public interests in taking care that no unreasonable compensation was paid for the services actually performed.

It is insisted, however, that by the contracts was meant the discontinuance of the service entirely — that is, an abandonment of all mail service in the cities in question. The mere statement of this position, we think, is its own demolition. It is unreasonable to believe that it was in the mind of anybody, when the contracts were made, that all mail service in any of the cities named would ever be abandoned. Such clearly was not the intention of the parties in the use of the language employed. That which was intended, however, and by the words of the contracts accomplished, was that the performance of the entire service by the claimant might be discontinued by the Postmaster-General whenever the public interest, in his judgment, required it. The power reserved in the contract to the Postmaster-General to discontinue the entire service, whenever the public interests in his judgment should require it, was the same, and none other, than the power to annul the contract when his judgment advised that it should be done (Garfielde v. The United States, 93 U. S., 246); and this being true, the only effect of such annulment would be to discontinue the further performance by claimant of the service described in the contract, and not an abandonment, for future time, of the mail service in the cities mentioned, to be let and performed as in other cases.

In conformity to the views herein expressed, the 'petitiou of the claimant should be dismissed, and it is ordered accordingly.

Nott, Oh. el.,

dissenting:

1. Mr. elustice Davis, in the case of Otis (20 C. Cls. R., 315), laid down as the rule of construction for these mail-messenger contracts of the Post-Office that the “new or additional mail-messenger or transfer service” which is to be performed “without additional compensation” must be construed to mean service similar in nature to that required by the contract. Ho also held that a contract prepared at the Post-Office, leaving the contractor no choice as to form or phraseology, must be construed in a doubtful case in favor of justice and against the Government. A more sound and just rule of construction was never laid down by a judge. The case was carried to the Supreme Court and afEnned (120 IT. S., 115).

I perceive nothing in the present case which justifies me in departing from the decision in the case of Otis, followed as it has been bj- similar decisions in successive cases.

In previous cases it has been held that there is a difference “in kind” between a “ mail station ” and a “receiving station.” The difference in kind between a street car and a post-office seems to me to be much more radical than the difference between a receiving station and a mail station. This system of carrying the mails on street cars did not exist when the contract was made; the claimant did not agree to meet street cars; he did not agree to meet street cars on time; he did not agree to wait for street cars behind time. The Postmaster-General had no right to try this experiment in city mail transportation at the claimant’s cost. As was said in a recent case, ‘‘a new system of receiving stations” is not “new or additional transfer or mail station service,” and “extra service” is not new or additional service. For the one the contractor can recover; the other must be performed without additional compensation. (Union Transfer Co. ’s Case, 36 C. Cls. R., 216.)

2. It is well settled that where a contract provides that additional work or service or material may be ordered only by a designated officer, such as the head of a Department, a subordinate can not bind the defendants by directing the contractor to do additional work, even though the defendants receive a benefit therefrom. That is to say, if the Secretary of the Treasury intends to erect a building at a cost of 1100,000, and stipulates that there shall be no additional work done, except when ordered by himself, the officer under whom the work is done can not make the defendants pay $110,000 for a better building than they contemplated erecting through their Secretary of the Treasury. But it is equally well settled that where service is rendered to the Government, which it needs and is invited by an officer having chai’ge of such work, an implied contract will arise and the claimant will recover in quantum meruit. (Clark v. United States, 95 U. S., 539.)

What are the distinguishing facts in this case? The claimant was a contractor doing mail-messenger service in the city of Boston under a contract which, in effect, required him to do whatever the postmaster might order and direct. There were complaints that the railroad service by which, the Brook-line post-office was served was inefficient and unsatisfactory. The postmaster, supposing that.Brookline was within the territory of the contractor and that the additional service would be performed without additional compensation, ordered the contractor to do it by wagon service. He complied, but appealed to the Postmaster-General, setting forth that the service was beyond his territory. The Postmaster-General called on the postmaster for explanations and investigated the facts; he then approved the service and thereby ratified what had been done, and directed the postmaster to take measures for its unbroken continuance and for permanently carrying it on. When these arrangements had been made he 'relieved the contractor from performing. The case, therefore, is precisely like that of Otis (120 U. S. R., 115, 121, 123) where, under a similar contract, the postmaster in New York required the contractor to carry mails beyond his territorial field, viz, from New York to Jersey City, and where the Supreme Court held that this was extra service for which the contractor was entitled to recover.

The similar case of Wesley E. Travis v. The United States (22814) was at the same time dismissed for the reasons set forth in the preceding opinion of the court.  