#### SAMUEL G. PROFFIT v. THE UNITED STATES.

(No. 22811.

Decided March 4, 1907.)

*On the Proofs.*

The claimant enters into mail messenger wagon transportation contracts for Baltimore and Washington. He agrees to perform “ *any and all ■new or additional service ”*without additional compensation for four years, and all service *“rendered necessary in the judgment of the ■Postmaster-General for any cause.”*At the time there are two street car routes in operation in Baltimore. Subsequently the entire volume of mail is collected in the same manner by means of postal car collection boxes, the street cars delivering the mail to the claimant at various street intersections.

I.The common law rule whereby all prior undertakings are merged in the written contract can not be strictly applied to contracts made by advertisements, bids, and acceptances. These three constitute the real contract; the written instrument is merely a reduction to form.

II.It is well settled that mail messenger service, which is different in kind and character from that existing when the contract is made, is not “ *new or additional service*” within the intent of the contract, and the contractor may recover therefor.

III.If a change simply adds to the contractor’s service it is “ *new or additional service,”*being of the same kind.

*249IV. Where the contractor in the city of Washington was required to make additional trips by the establishment of a new street railway route, but was relieved from services to other routes, so that the whole mileage traversed by him is decreased instead of increased, he can not recover.

*The Reporters'1*statement of the case:

The following are the facts of the case as found by the court:

I. That on or about the 15th day of September, 1896, the Postmaster-General of the United. States caused to be ^published an advertisement inviting proposals for the performance of the covered regulation wagon, mail-messenger, transfer, and mail-station service in the cities, among'others, of Washington, D. C., and Baltimore’ Md., upon the mail routes known as No. 413002, in Washington, D. O., and No. 413001, in Baltimore, Md., for the period from the 1st day of July, 1897, to the 30th day of June, 1901.

II. The “ Instructions to bidders,” as a part of said advertisement, contained the following provisions, viz:

“ The statements of probable additional or proposed service that.may be necessary on the routes under this.advertisement are given, so that bidders may be as fully advised as possible of the amount of service likely to be required. It will not, however, limit the liability of the contractor to perform *all*service that may become necessary *without additional pay.”*

Also the following:

“ The contractors under this advertisement will be required to perform, *without additional*compensation, *any and all new or additional service within said cities that may he ordered from July 1,1897, or at any time thereafter during the contract*term, Avhether between post-offices and railroacl stations, between post-offices and steamboat landings, between post-offices and mail stations, or between the several railroad stations, steamboat landings, and mail stations, iioav established or that may hereafter be established, whether caused by the establishment of new or by change of site of existing post-offices, railroad stations, steamboat landings, or mail stations, or by the alteration of the routes made necessary for any other reason.”

*250Also the following:

“ Bidders must inform themselves as to the distances, the running time, the weight of the mails, the condition of hills, streets, toll bridges, ferries, and obstructions of all kinds, whereby expense may be incurred, and as to the *probable*increase, *additional*service, *or changes likely to be rendered*necessary.”

Also the following:

“ There will be no diminution of compensation for partial discontinuance of service, or increase of compensation for new, additional, or changed service that may be ordered during the contract term.”

. III. Pursuant to said advertisement and the several matters therein contained, claimant made and filed with the Department proposals to carr}»' the mails on each of said routes in said cities under the said advertisement “ and subject to all the requirements and conditions contained therein,” from July 1, 1897, to June 30, 1901, for the sum of $14,997 per an-num for the service in Baltimore, Md., and for the sum of $16,170 per annum for the service in Washington, D. C. Thereafter said proposals were duly accepted by the Postmaster-General, and on December 21, 1896, claimant entered into contracts with the United States for the performance of said service during the period aforesaid.

IY. Said contracts recited that the claimant had been accepted as contractor for transporting the mails on said routes, being the covered regulation wagon mail-messenger, transfer, and mail-station service in said cities, under said advertisement, which was referred to and by such reference made a part of said contracts, “ and for performing all new. or additional service of said kinds which may at any time during the term of this contract be required in said city.”

The said contracts contained also the following provision:

“ To carry the mail, using therefor wagons of the kind hereinafter described in sufficient number to transq>ort the whole of said mail, whatever may be its size, weight, or increase, during the term of this contract, and within the time fixed in the pamphlet advertisement of the Postmaster-General, dated September 15, 1896, and so to carry until said schedule is altered by the authority of the Postmaster-Gen*251eral, as herein provided, and then to carry according to such altered schedtde.”

Also the following:

“ To take the mail from and deliver , it into the post-offices, mail stations, and cars at such points and at such hours, under the direction of the postmaster at Baltimore, Md., approved by the Postmaster-General, as will secure dispatches and connections and facilitate distribution, etc.”

Also the following:

“ To perform 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 Baltimore, Md., and Washington, D. C., 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 hereof, 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 may require as a part of such new or additional service.”

Y. The claimant submitted to the Post-Office Department, under its advertisement of September 16, 1895 (the advertisement preceding the one for the Baltimore, Md., and Washington, D. C., service), two proposals, one for service at Greensboro, N. C., the other for service at Augusta, Ga. The advertisement was similar to the one under which the contracts for the service at Baltimore, Md., and Washington, D. 0., were made, excepting that it set forth in full the terms of the contract form to be used, which copy was the same as the contract form which he executed for the service at Baltimore- and Washington. His proposals therefor were accepted by the Postmaster-General, and he entered into contract accordingly for such service. Claimant was therefore fully aware of the form of contract used by the Post-Office Department under similar advertisements.

YI. The schedule of service in operation August 1,1896, in Baltimore, Md., as shown by the advertisement of September 15, 1896, showed, *inter alia,*as follqws:

“ Prom the general post-office to the following-named railroad stations, etc.:

“ Baltimore Traction Company (Lombard and Charles streets) (313003-5). ■

*252“ Baltimore Traction Company (Charles and Lexington streets) (313003-5).”

Also:

“ To the general post-office from the following-named railroad stations, etc.:

“ Baltimore Traction Company (Charles and Lombard streets) (313003-5).

“Baltimore Traction Company (Charles and Saratoga streets) (313003-5).”

Following the schedule was the statement:

“ When service is established on the City and Suburban Railway the contractor will be required to carry mails between the cars and the post-office.”

VII. At the time of the advertisement of September 15, 1896, there were two street-car routes in operation in Baltimore, Md. — one, No. 313003, from Baltimore to South Baltimore; the other, No. 313005, from Baltimore to Station F— both operated by the Baltimore Traction Company; and the advertisement under which claimant submitted his proposal specified three points at street crossings upon these two railroad lines as “ railroad stations,” viz, Lombard and Charles streets, Lexington and Charles streets, and Saratoga and Charles streets.

VIII. On May 17,1897, the Postmaster-General authorized mail service on these street-car lines, operated by the Baltimore Traction Company, under route No. 313008, South Baltimore to Station E, Arlington, which route fully covered and superseded routes 313003 and 313005, which were therefore discontinued, and also extended the mail route.

IX. That at the time of the advertisement there ivas no street collection service by the street railways of the city of Baltimore, and the mail which ivas deposited in boxes adjacent to the line of the railways was collected by letter carriers or collectors from the various city boxes attached to the lamp-posts and other points in the city, and was brought by them and deposited in the city post-office or branch post-office, and from that point transported to certain designated stations by the street railway company, from whence contractor was notified in the advertisement he was expected to carry it into the city post-office.

*253That after said advertisement had been put out and the contract made in the spring of 1897, the system of collecting the mail from the street boxes, and other depositories by letter carriers and collectors (who were paid out of another appropriation, to wit, the free-delivery system) was changed, and postal car collection boxes were established on the streets, and postal collectors who were attached to the postal cars on the street railways were detailed to make in part the collection from the postal car collection boxes, and the existing collectors, instead of carrying the mails collected by them to the post-office as heretofore, delivered them to the street cars, and claimant was required to meet the po'stal cars of street railways at street corners, to wit, at the corner of North and Fayette streets, at the corner of Baltimore and Calvert streets, and at the corner of Holiday and Fayette streets, and transport the mail so collected by these various postal collectors aforesaid to the Baltimore city post-office, which service became necessary by reason of the change of collection by letter carriers and collectors which was in vogue at the time the advertisement was made. That this service took up about 45 per cent of the entire collection service in operation in said city at the time of the advertisement.

X. That at the time the advertisement was put out the mails passing between the Baltimore city post-office and the post-office at Catonsville, Towsontown, and Govenstown and other suburban towns were carried direct from the post-office to the several points by star-route contractors. The Postmaster-General discontinued said star-route contracts and transported the said mails to their destination by means of the street cars, and in order to effect this change the Postmaster-General established two postal routes, numbered, respectively, routes number 313009 and 313010 — number 313009 to run.and carry mail from the suburban town of Dundalk, in Baltimore County, through the city of Baltimore, gathering mail from substations in the city of Baltimore, to the suburban town of Lake Boland, in Baltimore County, designated as the Dundalk and Boland railway post-office ; number 313010 to run and carry mail from the town of Towson, the county seat of Baltimore County, through the intermediate suburban towns to the city of Baltimore and *254the village of Catonsville, in Baltimore County, designated as the Towson and Catonsville railway post-office — which postal routes superseded the star-route service and other modes of service by which the mail had heretofore been served to these localities outside of the city of Baltimore. This was an authorization of new service, notice of intention of establishing which was given in the advertisement.

XI. The Postmaster-General required the wagon contractor to carry the mails between the general post-office and route 313008 at Charles and Fayette streets, and between Station C and route 313008 at Charles and Hamburg streets, discontinuing the requirements of the advertisement for service between the general post-office and routes 313003 and 313005 (superseded by 313008) at Charles and Hamburg streets, Charles and Lexington streets, and Charles and Sara-toga streets. Also between the general post-office and route 313009 at North and Fayette streets; between the general post-office and route 313010 at Holiday and Fayette streets; between Union Station and 313008 at Charles and Fayette streets, Union Station and 313009 at Maryland Avenue Bridge, and Union Station and 313010 at Greenmount avenue and Preston street; and between Calvert Station and route 313009 at North and Fayette streets.

XII. The effect of these requirements was to increase the miles or travel by the contractor over that specifically named in the schedule of the advertisement, as follows:

Miles per annum.

Effect of orders prior to July 1, 1807_4, (i(>0. G

Effect of order of July 8, 1897_ 858. 8

Effect of order of December 14, 1898_ 742.-5G

Effect of order of January 25, 1899_ 28. 08

, Effect of order of July 15, 1899_ 124. 8

Effect of order of August 4, 1899_ 28. 08

Effect of order of October 5, 1899_ 40. 5G

And 181,335 separate and distinct trips.

XV. The schedule of service in operation August 1, 1896, in Washington, D. C., as shown by the advertisement of September 15, 1896, showed, *inter*alia, service as follows:

“ From and to the general post-office to and from the following-named railroad stations, etc.:

“ Capital Traction Company, Sixth street and Pennsylvania avenue NW. (313007).

*255“ Capital Traction Company, Seventh street and Florida avenue NW. (313002).

“ Brightwood Railway, Seventh street and Florida avenue NW. (313004).”

Also—

“ From and to Station B to and from Capital Traction Company, Fourth street and Pennsylvania avenue SE.

“ From and to Station C to and from Capital Traction Company, Fifteenth and F streets NW.

“ From and to Station A to and from Capital Traction Company, Thirty-first and M streets NW.”

The advertisement further, provided that regulation push carts might be used for the service from and to stations C and A.

NYI. At the time of the advertisement of September 15, 1896, there ivas mail service on the street car lines of the Capital Traction Company, routes Nos. 313002 and 313007, and of the Brightwood Railway, route 313004; and said advertisement specified two points at street crossings upon these lines as “ railroad stations,” viz, Sixth street and Pennsylvania avenue NW. and Seventh street and Florida avenue NW., and three points of exchange on said routes ivith mail stations, viz, Fourth street and Pennsylvania avenue SE., Fifteenth and F streets NW., and Thirty-first and M streets NW.

XVII. Thereafter, and during the term of claimant’s contract, the Postmaster-General authorized mail, service on.the Metropolitan Railroad — a street car line — on.routes 313013 and 313014, upon which railway line there had never heretofore been any mail service whatever, and also extended the service on the line of the Capital Traction Company by the authorization of service on route 313006. ' This last-named route, together with route 313002, was afterwards discontinued and route 313007 restated to cover them.

The site of the general post-office ivas changed and the old site became a mail station.

NVIII. By reason of these changes the claimant was required to perform additional service between the post-office and mail stations and the said railroad routes, and was relieved of some service which he had theretofore been required to perform under the schedule of the advertisement. *256In consequence of these requirements and the relief from performance of service the claimant’s service was at no time increased over that required in the advertisement, but was at all times materially decreased.

XIX. The effect of these changes and requirements was a material decrease in the miles of travel made by claimant in the performance of the service from those required under the schedule set forth in the advertisement and which he could otherwise have been required to make. These decreases were- as follows:

By order of August 16, 1897, claimant was relieved of the performance of service between Station B and Baltimore and Ohio Railroad, and between the general post-office by way of the Baltimore and Potomac Railroad to Station D, resulting in a decrease of 6,393.92 miles of travel per annum.

In lieu of this service the claimant was required to carry the mails from the general post-office to the Metropolitan Railroad, route 313014, at Sixth and F streets, resulting in a requirement of 832 miles of travel per annum.

ITe was further required to carry the mail between Station B and the Metropolitan Railroad, route 313014, equal to 174.72 miles of travel per annum.

Pie was further required to carry the mails from the general post-office to the Metropolitan Railroad, route 313013, at Ninth and PI streets, resulting in a requirement of 1,411.28 miles of travel per annum.

IPe was further required to carry the mails from the Metropolitan Railroad, route 313013, to Station D, resulting in a requirement of 122.72 miles of travel per annum.

The total of these requirements amounted to 2,540.72 miles of travel per annum, which were required in lieu of the 6,393.92 miles of travel per annum of which the contractor was relieved, making a decrease in the requirement of 3,853.20 miles of travel per annum.

By operation of the same order and of that of October 18, 1897, further additional service was required between the Metropolitan Railroad (route 313014) at 0 street and New Jersey avenue and Baltimore and Ohio Railroad, and between Station C and the Metropolitan Railroad (route 313014) at Fourteenth and F streets, and between the *257Metropolitan Railroad (route 313018) and the Baltimore and Potomac depot, resulting in a requirement of 312 miles of travel per annum, and leaving a continuing decrease of 3,541.20 miles of travel per annum.

This decrease continued until the claimant was relieved of service between the general post-office and the Brightwood Railway (route 313004) and the Capital Traction Company (route 313002) at Seventh street and Florida avenue, distance 1.25 miles, resulting in a decrease of 3,900 miles traveled per annum. This made the total decrease 7,441.20 miles traveled per annum.

This decrease continued until the .removal of the post-office and the consequent restatement of the wagon service from November 26, 1898.

This restatement of the wagon service resulted in a net reduction of the miles traveled per annum of 4,479.64, all changes of whatever character being considered; but a reduction of 8,071.96 miles of travel per annum as a result of the establishment of service on the Metropolitan Railroad complained of.

This decrease continued thereafter with slight changes, leaving the net number of miles of decrease large. All of these decreases were the result of the orders complained of, and all the additional service was for the purpose- of performing substantially the remaining service which was sj>eci-fied in the advertisement.

XX. The claimant was required to perform service between the general post-office and certain substations during the holiday season of 1897, 1898, and jiart of season of 1899. The reasonable value of this service is $219.25.

*Mr. John G. Fay*for the claimant.

*Mr. Joseph Stewart*(with whom *Mr. Assistant Attorney-General Van Orsdel)*for the defendants. *Mr. Louis A. Praclt*was on the brief.

Booth, J.,

delivered the opinion of the court:-

The contentions involved in this litigation arise out of a postal contract. The claimant entered into an agreement *258with the Post-Office Department on July. 1, 1897, for the performance of the covered regulation wagon, mail-messenger, transfer, and mail-station postal service in the cities of Baltimore, Md., and Washington, D. C. The contract extended over a period of four years, and by its terms imposed upon the claimant the performance of “ anj'’ and all new or additional service ” of the character above described without additional compensation. The amounts claimed in this case are alleged to be due claimant by reason of the performance of extra services not embraced within the meaning of “ new or additional ” services.

Claimant also seeks a reformation of the tenth .clause of the contract by eliminating therefrom the words “ or rendered necessary, in the judgment of the Postmaster-General, for any cause.” The contention rests upon a variance between the advertisement and the contract, the advertisement being made a part of the contract by the terms thereof. No additional testimony, except the statement of the claimant that he did not read the contract at the time of signature, is offered to sustain the position of a mutual mistake in the wording of the contract. On the other hand, it affirmatively appears that claimant had previously executed two contracts with the Post-Office Department respecting the transportation of the mails, in both of which these identical words appear. It is well settled that the common-law rule whereby all prior understandings ar.e merged in the subsequent written contract can not be strictly applied to contracts of this character, because they are .required to be made by advertisements, bids, and acceptances. These three steps constitute the real contract, and the written instrument is merely a reduction to form of the intention of the parties, as expressed in the prior advertisement, bid, and acceptance. *(Garfielde*v. *The United States,*93 U. S., 242; *Mueller*v. *The United States,*19 C. Cls. R., 581; *Harvey*v. *The United States,*105 U. S., 671.)

In this last case it was said: “If the formal contract is susceptible of a different construction, to the prejudice of the contractors, it is very plain that not only' the contractors but the officers of the Government were under a mistake.” While the doctrine thus announced is directly contrary to the *259rule at common law, both as respects mutual mistakes and quantum of proof required to sustain reformation of a written instrument, this case comes squarely Ayithin the decisions and reformation if deemed.essential to claimant’s rights in this case would be granted. The contract if reformed does not, however, limit the power or authority of the Postmaster-General to require “ any and all new or additional service within said cities ” to the full extent and meaning of the parties as gathered from the written instruments.

The issue raised is, in fact, an immaterial one. Defendants are not seeking to extend the meaning of the contract by the employment of the comprehensive terms sought to be eliminated therefrom. To so undertake would be unconscionable. The transaction in the light of all the circumstances surrounding it was a 'proposal and acceptance to perform a designated mail service, a service having its own identity, distinct from other mail service, and paid for out of separate appropriations.

Contracts similar in many respects to the one in suit have been the subject of litigation many times in this court. The rule governing their construction is well settled. As was said in *Utah, Nevada and California Stage Company*v. *The United States*(39 C. Cls. R., 435) : “ It must, therefore, be regarded as a settled rule of decision of this court that the ‘ new or additional mail messenger or transfer service ’ which is to be performed ‘ without additional compensation ’ is one thing and that service which is different in kind and character is another, and that for the former the contractor can not recover, but for the latter he may.”

The first claim for extra services under the Baltimore contract arises from an alleged change of system of collecting the mails and delivering them into the general post-office. At the time of the advertisement there were two street car routes in operation in Baltimore, and the claimant was advised that he would be required to meet these cars at certain specified points and take from and deliver to them mails from the general post-office. This was admittedly service within the contract, and the mail thus transported was gathered from branch post-offices located upon the street car lines. Subsequent to the advertisement and execution of the con*260tract, the' collection of mail from street letter boxes and substations by letter carriers and mail collectors theretofore in vogue was discontinued and this entire volume of mail was collected by means of postal-car collection boxes installed at various points along the line of the street railways, from which postal collectors attached to postal cars collected the same, and the street cars delivered it to the claimant at various street intersections where he was required to meet them and transport the mail to the general post-office. (Finding IX.) It is to be observed, however, that the additional service thus imposed upon the claimant was not different in kind and character from that embraced in the contract. The service differs in every respect from that heretofore declared extra by the court, in that the claimant was not required to visit the collection boxes and carry the mails directly therefrom to the general post-office. He was, it is true, required to make many additional trips to and from the street cars and carry a much greater volume of mail to the general post-office, but the service was clearly within the requirements of the covered regulation wagon mail-messenger transfer and mail station postal service as contemplated bjr the contract. This case differs from the *Union Transfer Company's Case*v. *The United States*(36 C. Cls. R., 216), wherein the contractor was required to perform extra service by carrying the mails to and from the central post-office and numerous receiving stations established subsequent to the contract at various points throughout the city. In the present case the contractor understood before and at the time of the execution of the contract that the service he was to perform embraced the carriage of the mails to and from the street railway stations, and to which he made no protest or objection. If the change in system simply added to, although it materially increased his service in this respect, it can not be said to be extra, but is new and additional service of the same kind. Claimant obligated himself • to transport the mails from the mail stations to the general post-office, to and from the general post-office and railway stations, steamboat landings, etc., “ whatever may be its size, weight, or increase during the term of this contract.” The language in both the advertisement and the contract being anticipatory in charac*261ter necessarily warned the contractor that he was engaging to perform a service susceptible to fluctuation at any time.

There can be no allowance for the second claim for extra services under the Baltimore contract for reasons stated above, and for the additional reason that claimant was notified by the advertisement that such service was to be established and he would be required under the contract to perform it. The additional service he was required to perform was the carriage of the mails from street car stations to and. from the general post-office, inaugurated subsequent to the execution of his. contract, being the establishment of street railway postal service upon street railway lines in the city of Baltimore which had not theretofore carried the mails. (Finding X.) *Luther M. Slavens*v. *The United States*(88 C. Cls. R., 574), affirmed by the Supreme Court, but not yet reported.

Becovery for extra service under the Washington contract is rested solely upon the case of the Utah, *Nevada and California Stage Company*v. *The United States (supra),*claimant asserting that for no apparent reason the service in vogue at the time of the contract was duplicated subsequent to its execution. (Findings XY to XX.) The case relied upon is not similar in every respect to this. The court therein did award judgment for the duplication of an existing service. The case turned, however, not solely upon the duplication of service, but upon the magnitude of the additional service required of the contractor. The court said:

“The very magnitude of the service exacted by the Post-Office Department changed the service in kind and character. In form it was ‘ new and additionalin substance it was rendered for a new and different system of postal administration in the city of New York, of such magnitude that it could not have been anticipated or foreseen by the most prudent and experienced business man who proposed to bid for the service or enter into the contract.”

The additional and extra service there required was increased 50 per cent by the establishment of a second city post-office quite a distance away and entirely separate and distinct from the general post-office. The findings in this case do not disclose an abnormal increase of claimant’s *262services; on the contrary, by the establishment of the new street railway route claimant was relieved from services to other routes, until on the Avhole the mileage traversed by him Avas decreased instead of increased. He Avas required to make additional trips to and from the street railway stations; but his services were of the same kind and character and came within the regulation wagon, mail messenger, transfer, and mail station postal service, as provided in the contract. *(Luther Clay Slavens v. The United*States, *supra.)*

It appears that during the holidays claimant Avas required by the Postmaster-General to perform, and did perform, certain service betiyeen the various substations and the'main post-office, in Washington. For this service claimant is entitled to recover. *(William II. Woolverton*v. *The United*States, 34 C. Cls. R., 247.) The reasonable value of the same is $219.25, for Avhich amount judgment will be awarded.