
    B. H. PETERSON v. THE UNITED STATES.
    [No. 15600.
    Decided May 18, 1891.]
    
      On the Proofs.
    
    A mail contractor furnishes an affidavit with reference to an expedited service which contains inaccuracies; but the errors relate to the schedules of arrivals and departures and other matters, as well known to the Department as to himself.
    I. A trifling error, apparently clerical, which could mislead no one in an affidavit furnished by a mail contractor as information for the cost of an expedited mail service, can not be set up as a fraudulent representation.
    II. If such an affidavit is incorrect only in the statement of facts as well .known to the Department as to the contractor, it can not be held that fraud was practiced.
    
      The Reporters' ¿statement of the case.
    The following are the facts of this case as found by the court:
    I. March 15,1878, B. H. Peterson, plaintiff herein, contracted with defendants to carry the United States mail between Shreveport and Bed River Landing’, La., on route 30162, 261 miles each way, three times a week, from July 1,1878, to June 30,1882, for the compensation of $11,700 per annum, and on a schedule of 60 hours running time each way. The pay for this service was fixed at $11,700.
    II. Plaintiff made oath to the following statement, as shown thereon at the date thereof, and subsequently filed the same in the Post-Office Department:
    
      “ Hon. Tnos. J. Beady,
    
      “ Second Assistant Postmaster-General:
    
    “Sir: To perform service on mail route No. 30162, La., advertisement of Nov. 1st, 1877, under the present schedule of sixty-one (61) hours, six times a week, requires sixteen men and fifty-two horses.
    “To perform the service on a schedule of forty-eight (48) hours will require thirty-six (36) men and one hundred and fifteen horses.
    “B. H. Peterson,
    “ Contractor.
    
    “Sworn to and subscribed before me this second day of April, A. D. 1879.
    [seal.] “ Edward F. O’Brien,
    “ Notary Public, It. G.”
    
    After this affidavit had been filed, and on the 15 July, 1879, Postmaster-General increased the service on said route from three to six times a week, to begin August 1,1879, and allowed plaintiff $11,700 per annum additional pay therefor; and from same date the Postmaster-General changed the service schedule on said route sq as to require it to be performed by a schedule of arrivals and departures not to exceed 48 hours ruuning time each way, and allowed claimant $28,561 per annum additional pay therefor.
    III. March 17,1880, an order was made, to take effect April 1,1880, whereby the Postmaster-General reduced the service on said route from six to three times a week, and the pay of plaintiff from $51,961 per annum to $25,980.30 per annum, being $11,700 for the additional trips and $14,280 for the expedition of service. Contractor and subcontractor were allowed 1 month’s extra pay on the sum deducted.
    IV. October 18, 1880, an order (to take effect October 22, 1880) was made by the Postmaster-General increasing the service on a portion of said route, namely, from Shreveport to Alexandria, La., a distance of 177 miles, from three to seven times a week, and requiring that the same be performed on a schedule of arrivals and departures not exceeding 32¿ hours running time each way between those points, and allowed petitioner therefor $23,491.94 additional pay, being $10,579.30 for the additional trips and $12,912.64 for expedition of service.
    V. From the date last named, October 22, 1889, the aggregate amount allowed plaintiff by the orders of the Postmaster-General above referred to for expedition of service on said route was at the rate of $27,193.13 per annum; said increase and expedition of service was performed.
    VI. The following orders were issued by the Post-Office Department at the dates shown thereon and were obeyed:
    [1881, August 23. — No. 11767. ]
    “ From September 1,1881, restore the original contract schedule time (60 hours each way) and deduct $27,193.13 from the annual pay of contractor, being the amount he is receiving for expedition of service, and deduct $19,101.81 from the annual pay of subcontractors, being pro rata.' No allowance of extra pay to be made on such deduction.”
    [1881, August 26. — No. 11911.]
    
      “ Modify order of August 23,1881 (No. 11767), restoring original contract schedule time, so as to let it take effect from September 16,1881, instead of September 1,1881.”
    [1883, February 16. — No. 2029.]
    “ Modify order of August 23,1881 (No. 11767), so as to disallow 1 month’s extra pay on the amount deducted on account of expedition of service thereby dispensed with, because it appears that the order made on July 15,1879 (No. 6626), allowing contractor $28,361 per annum for expedition of service on six trips per week service, was made prior to the performance of six trips, per week service, which six trips per week service was never performed on a schedule of 60 hours, and said allowance was not, therefore, based upon any known proportion of stock and carriers under the original and the expedited schedules, and it did not appear therefore than the compensation for expedition bore no greater proportion to the additional stock and carriers necessarily employed than the compensation in the original contract bore to the stock and carriers necessarily employed in its execution.”
    VII. For the sum of $27,193.13 thus deducted from the annual pay of plaintiff, and which had been previously allowed for expedition, no compensation, allowance, or extra pay has been given, although application therefor has been made.
    VIII. The following postal regulation was in force at the time the contract in question was executed and during the entire period of the term for which it was made, viz:
    
      “ Sec. 621. Decreased compensation for decreased service.
    
    “ The Postmaster-General may discontinue or curtail the service on any route, in whole or in part, in order to place on the route superior service, or whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any other cause; he allowing, as full indemnity to contractor, one month’s extra pay on the amount of services dispensed with, and a pro rata compensation for the amount of services retained and continued.” (Postal Laws and Begulations, chp. 3, p. 145, ed. 1879.)
    IX. The contract in question herein contains the following stipulation:
    “It is hereby stipulated and agreed by the said contractor and his sureties that the Postmaster-General may discontinue or extend this contract, change the schedule and termini of the route, and alter, increase, decrease, or extend the service in accordance with the law, he allowing pro rata increase of compensation for any additional service thereby required, or for increased speed, if the employment of additional stock or carriers is rendered necessary; but in case of decreased curtailment or discontinuance of service, as a full indemnity to the said contractor, one month’s extra pay on the amount of service dispensed with, and & pro rata compensation for the service retained : Provided, however, That in case of increase of expedition the contractor may, upon timely notice, relinquish the contract.”
    X. Substantially the number of horses and men estimated in the affidavit (finding ii) were actually and necessarily used on the route under the schedule of 6 times a week at 48 hours running time.
    
      Mr. William Small, for the claimant.
    
      Mr. Henry M. Foote (with whom was Mr. Assistant Attorney-General Cotton), for the defendants:
    The burden of proof is upon claimant to overcome the fraud or misrepresentation established in the case before he can recover. As bearing upon these questions, see Cochran v. Cummings (4 Dali., 250); Banlc of Cnited States v. Owens (2 Pet., 527); United States'v. Barlow (132 U. S. B., 271); United States v. Voorhees (135 U. S. B., 550).
    
      We do not desire to comment upon tbe apparently well-settled principles which .control this case. There can be no question as to the effect of the false and erroneous affidavit made by claimant as an inducement in obtaining expedition of his mail contract. The Postmaster-General relied upon these statements, and erroneously expedited this service. Claimant had not performed it on a schedule of six trips per week prior to the order of expedition, and it follows that no facts relating to the stock and carriers necessary to perform the service under the original contract were before the Postmaster-General at the time he made the order.
    It is now attempted to obtain compensation for service not shown to have been performed, notwithstanding defendant has established that the claim in its inception is founded on fraud and misrepresentation. We can see no reason, as the case is presented, why defendant is not entitled to judgment for the sum of money which has been erroneously paid and fraudulently obtained by claimant; and it is therefore respectfully submitted that his petition should be dismissed, and that defendant have judgment against him for the sum of $8,896.48.
   Davis, J.,

delivered the opinion of the court:

The subject-matter of this claim is a contract for carrying the mail upon a “star” route in Louisiana. After the route had been let there were several changes in the service, comprising increase, expedition, and reduction. The various orders directing these changes in speed and amount of service we need not examine, as the case presents but one point, to wit, whether plaintiff is entitled to a month’s extra pay because of the discontinuance of expedited service. The order, dated August 23, 1881 (No. 11767), provided that after the first day of September following the original contract time should be restored, that is, the expedition was abolished, and the pay for expedition was discontinued, without allowance of extra pay upon the deduction. This order was afterwards modified (No. 11911) to take effect September loth.

It is provided as follows in the Postal Regulations (§ 621):

“ The Postmater-General may discontinue or curtail the service on any route, in whole or part, in order to place on the route superior service, or whenever the public interests, in his judgment, shall require such discontinuance or curtailment for any other cause; he allowing, as lull indemnity to contractor, one month’s extra pay on the amount of services dispensed with, and a pro rata compensation for the amount of service retained and continued.” (Postal Laws and Regulations, ch. 3, p. 145, ed. 1879.)

The contract stipulates:

“It is hereby stipulated and agreed by the said contractor and his sureties, that the Postmaster-General may discontinue or extend this contract, change the schedule and termini of the route, and alter, increase, decrease, or extend the service in accordance with the law, he allowing pro rata increase of compensation for any additional service thereby required, or for increased speed, if the employment of additional stock or carriers is rendered necessary; but in case of decrease curtailment, or discontinuance of service as a full indemnity to the said contractor, one mouth’s extra pay on the amount of service dispensed with and a pro rata compensation for the service retained : Provided, however, That in case of increase of expedition the contractor may, upon timely notice, relinquish the contract.”

Upon this regulation and contract standing alone plaintiff would be entitled to judgment.

An affirmative defense is, however, urged for the Government, in whose behalf it is contended that the affidavit sworn to April 2,1879, and then filed with the Postmaster-General by plaintiff, was false, and shows that fraud or misrepresentation was practiced in obtaining the order expediting the service.

The affidavit states that to perform the service “ under the present schedule of sixty-one hours six times a week requires sixteen men and fifty-two horses.” There never was a schedule of sixty-one hours; the then existing schedule, as the Post-Office knew as well as plaintiff, was sixty hours. This is a trifling error, of no moment; probably it was a clerical mistake. It could mislead no one, for the Department had prescribed the schedule, and of course knew it provided a running time of sixty hours.

Further, the affidavit recites: “ Under the present schedule * * * six times a week.” In fact the present schedule” (the schedule then in force) provided for three trips a week; this the Post-Office Department knew quite as well as plaintiff, and could not be misled by any affidavit of his in this regard. The affidavit contains a plain statement of an alleged existing fact, as capable of verification in the Post-Office Department in Washington as upon the route in Louisiana. It is not an affidavit as to what was in fact being done in Louisiana, but is an affidavit as to the provisions of a schedule prescribed by the Department in Washington. Is it not more probable that this affidavit, carelessly written, was intended to state that to perform service on the route under the “present schedule” of sixty hours six times a week, instead of three times a week, would require a certain number of horses and men, and then, if the running time were also reduced to forty-eight hours, so many more horses and men would be required ? The project was to change a triweekly service made in sixty hours toa service six times a week made in forty-eight hours; then what more natural than that the contractor should first estimate the number of horses and men required to double the existing service at the same speed, and upon this base his calculation for the greater speed ?

It seems to us that the affidavit is merely faulty in phraseology ; but whether so or not, even if the defendant’s contention be sustained, the affidavit is incorrect only in the statement of a fact then as well known to the defendants as to the plaintiff, to wit, as to what was the existing schedule which the Department had prescribed. In the result there was no wrong done the Government, for substantially the number of horses and men estimated for were necessarily employed in the expedited and increased service. (Griffith v. The United States, 22 C. Cls. R., 165; U. S. v. Voorhees, 135 U. S. R., 550; Parker v. The United States, post.)

Judgment for plaintiff in the sum of $2,266.09.

Counterclaim dismissed.  