#### JESSE B. HUSE v. THE UNITED STATES.

[No. 28727.

Decided December 7, 1908.]

*On the Proofs.*

A mail-messenger contract, in the usual form prescribed by the department, requires the contractor to personally inform himself “ *of the amount and character of the service that will be required.”*He is informed and knows when he executes the contract that the service will be. the carrying of all the mails entering or going out from the Union Station in Omaha. Subsequently he protests against being compelled to carry the mails brought into the Union Station on the trains of three railroads not named in the advertisement. Ultimately the Postmaster-General annuls the contract because of the contractor’s *“failure and refusal to comply with the instructions of the Postmaster-General*” and for his failure to comply with the terms of the contract. The annulment being caused by the claimant’s neglect to perform according to the terms of the contract, the Postmaster-General refuses to allow him the one month’s extra pay allowed in cases where the contractor is not delinquent but the public interests require the discontinuance of the service.

*20I.Where tlie advertisement and instructions t9 bidders notify a contractor tbat tbe mail service described in tbe advertisement is “ *approximate*” and tbat a bidder must inform himself “ *of the amount and character of the service,"*and tbe contractor is informed and knows tbat tbe existing service involves tbe carrying of all tbe mails that come into or go out from a designated railroad station, such service will be deemed tbe subject of tbe contract though tbe term “ *all the mails*” is not used in either tbe advertisement, tbe instructions to bidders, or tbe contract.

II.Tbe Post-Office advertisements and instructions to bidders east upon mail-messenger contractors the duty and responsibility of ascertaining the amount and character of the service to be performed; and where the contract is equally explicit tbe contractor is bound to know what may be required of him and can not evade the obligation by saying tbat some of the • railroads bringing mails into a designated station were not specified in tbe advertisement

III.Where a'mail-messenger contract was annulled because of the contractor’s neglect and failure to perform he is not entitled to the one month’s extra pay which is to be allowed a contractor not in fault where tbe public interests require a discontinuance of the service.

*The Reporters’*statement of the case:

The following are the facts of the case as found bj? the court:

I. On September 16, *1901,*the Postmaster-General of the United States advertised for proposals for carrying mails in various cities, and among others, for screen-wagon, mail-messenger, transfer, and mail-station service at the city of Omaha, Nebr., on what is known as route No. 457005, for the period between July 1, 1902, and June 30, 1906. Said advertisement, omitting all cities therein named except Omaha, Nebr., was as follows: (Here insert in case of appeal.)

II. The Instructions to Bidders which were made a part of said advertisement and contract contained, among others, the following provision:

“ 1. The foregoing schedules show approximately the service as performed during the week named in the statement of service for each route. Bidders, however, must personally inform themselves of the amount and character of the service that will be required during the contract term, *21beginning with July 1, 1902. Bidders and tbeir sureties are warned that they should familiarize themselves with the terms of the contract, schedules of service, and instructions contained herein before they shall assume any liabilities as such bidders or sureties, to prevent misapprehension or cause of complaint thereafter.”

III. On October 30, 1901, claimant submitted a proposal to carry the mails pursuant to the requirements and conditions of said advertisement for the sum of $7,889 per annum, which contained, among other things, the following:

“ This proposal is made after due inquiry into and with full knowledge of all particulars in reference to the service; and also after careful examination of the conditions attached to said advertisement, and with intent to be governed thereby.”

Prior to submitting said proposal the claimant carefully read the advertisement and instructions to bidders and familiarized himself with their terms, and knew that the trains of the Chicago and Northwestern Railroad, the Chicago, Milwaukee and St. Paul Railroad, and the Wabash Railroad entered the Union Station at Omaha, and to further inform himself as to the amount and character of the service to be performed he consulted the postmaster and superintendent of mails at Omaha, who called his attention to the Instructions to Bidders, also a Mr. Anderson, who had been in charge of the work under a former contractor, who explained to him the three depots, including the Union Station, and the mail to be taken from them and the number of wagons it would take to perform the service.

Thereafter said proposal was accepted by the Postmaster-General, and on January 15, 1902, claimant entered into the following contract:

“ CONTRACT FOR MAIL SERVICE.

“ *Screen-wagon service in the city of*Omaha, *Nebraska.*

“ Route No. 457005.

“ Annual rate of pay $7,889.00.

“ Contractor’s address: Omaha, Douglas Co., State of Neb.

“ This article of contract, made the 15th day of January, nineteen hundred and two, between the United States of America (acting in this behalf by the Postmaster-General) *22and Jesse B. Huse, contractor, and the United States Fidelity and Guaranty Company of Baltimore, Md., and- ■ — —, of-, as his sureties:

“ Witnesseth, that whereas Jesse B. Huse, has been accepted as contractor for transporting the mails on route No. 457005, being the screen-wagon service at the city of Omaha, Nebraska, under an advertisement issued by the Postmaster-General on the 16th day of September, 1901, for such service, which advertisement is hereby referred to and made by such reference a part of this contract, and for performing such additional service of said kind, or kinds, as is provided by the terms of said advertisement, which may at any time during the term of this contract be required in said city, at the rate of seven thousand eight hundred and eighty-nine dollars per annum, for and during the term beginning the first day of July, 1902, and ending June-30, 1906.

“ Now, therefore, the said contractor and his sureties do, jointly and severally, undertake, covenant, and agree with ■the United States of America, and do bind themselves—

*“First.*To carry said mail in a safe and secure manner, using therefor substantial, one or two horse, screen wagons, of the kind more fully described in the advertisement above referred to, in sufficient number and of sufficient capacity, to transport 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 said advertisement; the wagons to be new at the beginning of the contract term, of first-class material and construction, suitable for the proper performance of the service, affording complete protection to the mails from depredation, inclement weather, or other injury, to be kept thoroughly painted, cleaned, and in good condition at all times, and subject in all respects to the approval of the Postmaster-General.

*“ Second.*To take the mail from, and deliver it into, the post-office, railroad stations, mail station, electric or cable cars, and cars at such points and at such hours, under the directions of the postmaster at said city, approved by the Postmaster-General, as will secure dispatches and connections and facilitate distribution, and at the contractor’s expense for tolls and ferriage.

“ *Third.*To furnish the number of said wagons (of the required sizes) that, in the opinion of the postmaster at said city, approved by the Postmaster-General, will be sufficient for the prompt and proper performance of the service, including extra wagons to take the place of those that may be temporarily unserviceable, delayed waiting for trains, withdrawn from service for repairs, or required for special or advance trips.

*23
      *“ Fourth.*To be accountable and answerable in damages to the United States, or any person aggrieved, for the faithful performance by the said contractor of all the duties and obligations herein assumed, or which are now or may hereafter be imposed upon him by law in this behalf; and, further, to be so answerable and accountable in damages for the careful and faithful conduct of the person or'persons who may be employed by said contractor and to whom the said contractor shall commit the care and transportation of the mails, and for the faithful performance of the duties which are or may be by law imposed upon such person or persons in the care and transportation of said mails; and, further, that said contractor shall not commit the care and transportation of the mail to any person under sixteen years of age, nor to any person not of good moral character, or who has not taken the oath- prescribed by law, or who can not read and write the English language.

*“Fifth.*To discharge any driver, or other person employed in performing mail service, whenever required by the Postmaster-General so to do; not to transmit by themselves, or any of them, or any of their agents, or be concerned in transmitting, commercial intelligence more rapidly than by mail; not to carry, otherwise than in the mail, letters, packets, or newspapers which should go by mail.

“ *Sixth.*To account for and pay over any money'' belonging to the United States which may come into the possession of the contractor, his sureties, or employees.

*“ Seventh.*That foreign mails in transit across the territory of the United States shall, within the meaning of this contract, be deemed and taken to be mails of the United States.

“ *Eighth.*To carry post-office blanks, mail locks and mail bags, and all other postal supplies.

*“ Ninth.*To convey, whenever requested so to do, one railway post-office clerk, a substitute, or a messenger, on the driver’s seat of each wagon.

“ *Tenth.*To perform, without additional compensation, any and all additional service that the Postmaster-General may order during the contract term, between post-offices, between the post-office and railroad stations, between the post-office and steamboat landings, between the post-office and mail stations, between the post-office and the points of exchange with electric or cable cars, and between the several post-offices, railroad stations, steamboat landings, mail sta-\ tions, or points of exchange with electric or cable cars, *named in the schedule of service for said route in said advertisement.*Also to perform, without additional compensation, any and all additional service during the contract term that *24may be caused by changes of site of said post-offices, railroad stations, steamboat landings, mail stations, or points of exchange with electric or cable cars; and to and from any new railroad station within the city used by a company named in the schedule of service, and also such mail-messenger service as may be necessary between the post-office and a new railroad using the depot of a railroad named in the schedule of service, and such tránsfer and mail station service as may be necessary to and from such railroad; provided that in the case of a mail station the increase in distance traveled by reason of such change of site does not exceed one-quarter of a mile per trip each way; the discontinuance of a mail station and the establishment of another in its stead not involving an increase in travel of more than one-quarter of a mile each way per trip to be regarded as a change of site, and no additional pay to be allowed for the increased service caused by such change.

“ For which service, when properly performed, and the evidence thereof shall have been filed in the office of the Second Assistant Postmaster-General, the said contractor is to be paid by the United States at the rate per annum hereinbefore named; payments to be made quarterly, in the months of November, February, May, and August, or as soon thereafter as accounts can be adjusted and paid, said pay to be subject, however, to be reduced or discontinued by the Postmaster-General, as hereinafter stipulated, or to be suspended and withheld in case of delinquency.

“ It is hereby stipulated and agreed by said contractor and his sureties that the Postmaster-General may change the schedule, vary, increase, or decrease the trips on this route, or extend the trips to any new location of the post-offices, railroad stations, steamboat landings, mail stations, or points of exchange with cable or electric cars named in the schedule of service for said route in said advertisement without change of pay;' provided that in case of a mail station the increase in distance traveled to and from such new location does not exceed one-quarter of a mile each way per trip; and that the Postmaster-General may discontinue the entire service under this contract whenever the public interest, in his judgment, shall require such discontinuance, but for a totai discontinuance of service the contractor shall be allowed one month’s extra pay as full indemnity.

“ And it is further stipulated and agreed, that for a failure to deliver the mail not beyond the control of the contractor, or for any delay or interference with the prompt delivery of the mail at the places required herein, or for carrying the mail in a manner different or inferior to that herein-before specified; for suffering the mail to be wet, injured, *25lost, or destroyed; or for any otlier delinquency or omission of duty under this contract; for all 'or any of which the contractor shall forfeit, and there may be withheld from his pay, such sum as the Postmaster-General may impose as fines or deductions, according to the nature and frequency of the failure or delinquency.

“ And it is further stipulated and agreed, that the Post- ' master-General may annul this contract for repeated failures; for■ violating the postal laws; for disobeying the instructions of the Post-Office Department; for refusing to discharge a carrier or any other person employed in the performance of service, when required by the Department; for tansmitting commercial intelligence or matter that should go by mail, contrary to the stipulations herein; for transporting persons so engaged as aforesaid; whenever the contractor shall become a postmaster, assistant postmaster, or member of Congress; and whenever, in the opinion of the Postmaster-General, the service can not be safely performed, the revenues collected, or the laws maintained.

“ And it is further stipulated and agreed, that such annulment shall not impair the right of the United States to claim damages from said contractor and his sureties under this contract; but such damages may, for the purpose of set-off or counterclaim, in the settlement of any claim of said contractor or his sureties against the United States, whether arising under this contract or otherwise, be assessed and liquidated by the Auditor for the Post-Office Department.

“And it is hereby further stipulated and agreed by the said contractor and his sureties that this contract may, in the discretion of the Postmaster-General, be continued in force beyond its express terms for a period not exceeding-six months, until a new contract with the same or another contractor shall be made by the Postmaster-General.

“And it is further stipulated, that no Member of, or Delegate to, Congress shall be admitted to any share or part of this contract, or to any benefit to arise therefrom.

“And this contract is further to be subject to all the conditions imposed by law and the several acts of Congress relating to post-offices and post-roads.”

IY. At the beginning of the contract term, July 1, 1902, claimant had not provided the necessary wagons for the performance of the service -under his contract as required by the Postmaster-General, and for that reason he was not permitted to commence said service until August 21, 1902, at which date he had provided himself with such equipment. From July 1 to August 21, 1902, the Postmaster-General *26authorized temporary service and charged the cost thereof to claimant to the amount of $1,108.70, and in addition a fine of $50 was imposed for his failure to provide the necessary equipment as aforesaid.

Y. Under said contract the Postmaster-General required claimant to carry the mails which arrived at and departed from the Union Station over the Union Pacific Railroad tracks on the trains of the Chicago and Northwestern, the Chicago, Milwaukee and St. Paul, and the Wabash railroads, in addition to the mails arriving and departing over the roads specifically mentioned in the advertisement as set forth in Finding I, without additional compensation, which claimant did under protest. Before entering upon the performance of his contract and after the execution thereof the claimant was informed by the Postmaster that he would he required to cany said mails. It appears that after entering into said contract, to wit, between February 18 and August 21, 1902, the claimant performed service for the United States as temporary contractor under a prior contract therefor, and as such temporary contractor he carried all the mail to and from Union Station, including the mails arriving and departing on the trains of said three roads over said Union Pacific tracks. The Chicago, Rock Island and Pacific Railway Company and the Missouri Pacific Railway Company also crossed the Missouri River from Council Bluffs over the bridge of the Union Pacific Railroad in order to enter the Union Station at Omaha, each operating imder a separate mail route contract, to wit, 157064 and 157075.

VI. At the time of said advertisement of September 16, 1901, and for a number of years prior thereto, there were no railroad routes stated into Omaha, Nebr., in the names of the Chicago and Northwestern Railroad Company, the Chicago, Milwaukee and St. Paul Railroad Company, or the Wabash Railroad Company. The contract routes of said three companies for carrying the mails, namely, routes 135008, 143028, and 145061, from Chicago, Marion, and Pattonsburg, Mo., respectively, all terminated at Union Pacific Transfer, Iowa (Council Bluffs), at which latter place all mail was for many years transferred to trains of the Union Pacific Railroad and by them carried into Omaha. *27From about the time the Union Station was built, long prior to the advertisement in the present case, said three roads procured an entrance into Omaha over the tracks of the Union Pacific Railroad; and the Post-Office Department, to avoid delay in transfer, arranged with said roads and the Union Pacific road for said three roads to carry the mail from said Council Bluffs on the route, track, and on the time prescribed by said Union Pacific road to the Union Station in Omaha. The trains so performing said service were known and treated by the Post-Office Department as mail trains of the Union Pacific Railroad Company, route No. 157001, and Avere operated under the rules of said Union Pacific Railroad Company, and payment was made therefor to the said Union Pacific Company. All weights of mail carried by said three roads were credited to the Union Pacific Railroad route and Aveighed thereon. The screen-wagon contractor under the preceding advertisement and contract, Avhich Avere similar to the one in this case, carried mails to and from the trains of said three roads as part of his contract, and these facts were known to persons having knowledge of the service.

VII. From August 21, 1902, claimant gave his personal superAdsion to the Avork under the contract, and on the 1st days of September and October, 1902, the postmaster at Omaha reported that the horses, Avagons, and harness used by claimant Avere in good condition and in accordance Avith the requirements of the contract.

VIII. At various times throughout the period claimant was engaged in service under his contract he failed in its performance in respect to the kind of help he employed, and also failed to keep his horses and Avagons in good condition; he kept in his employ bojss and drivers who were careless and neglectful at times in receiving and delivering mail, and particularly from street cars and the platform at the post-office, frequently putting pouches on the Avrong electric cars and leaAÚng Avagons unlocked; and he failed to have his drivers wear the regulation caps and badges, and to comply with the instructions of the Postmaster-General. For such failure and delinquencies not satisfactorily explained to the Postmaster-General he imposed fines amounting to the sum *28of $288 up to January 1, 1903, which were paid. Other fines were imposed for failures between that date and May 20, 1903, amounting to $49.50, which amount has not been paid by claimant.

IX. March 24, 1903, claimant asked to be relieved from his contract, claiming that owing to the construction placed upon it by the Post-Office Department he could not perform the service required. This request was refused by the Postmaster-General.

April 15, 1903, the department wrote to claimant giving him until July 1, 1903, to improve the service, and requiring him to make certain repairs to his equipment, and to replace ten horses by May 10,1903. Claimant failed to comply with these requirements, and on May 20, 1903, the Post-Office Department annulled said contract with claimant because of his failure and refusal to comply with the instructions of the Postmaster-General as set forth in Finding VIII.

X. Upon the annulment of said contract as aforesaid the Post-Office Department installed a temporary service from May 20 to October 1, 1903, at the rate of $14,965 per annum, amounting for said period to the sum of $2,525.46 in excess of the rate provided by contract with claimant, and a contract was awarded to other parties at the rate of $13,250 per annum for the period from October 1, 1903, to June 30, 1906, for the same service that claimant was required to perform under his said contract, making an excess cost to the Government of $14,742.75 over claimant’s contract price for said last-named period.

XI. The weight of mail carried by claimant to and from the Chicago and Northwestern, the Chicago, Milwaukee and St. Paul, and the Wabash railroads was equal to about two-fifths of the total weight of all the mail carried to and from Union Station, and a reasonable compensation for carrying same, upon the basis of claimant’s contract, from August 21, 1902, to May 20,1903, if claimant is entitled to recover therefor in this action, would be $2,366.70.

XII. After the annulment of his contract claimant disposed of his horses, wagons, and outfit at' a loss of $900 on the Wagons and harness.

XIII. Claimant has not been paid for service under his contract from January 1 to May 20, 1903, which at the con*29tract price amounts to $3,034.22, from which, should be deducted $49.50 for fines imposed by the department, leaving a balance, if the claimant is entitled to recover, of $2,984.72.

*Mr. Edwin O. Brandenburg*for the claimant. *Messrs. Brandenburg & Brandenburg*were on the brief:

It has been uniformly laid down by the courts that forfeitures are not favored in the law, and from the very first this court has taken the same position, as appears from an opinion delivered by Chief Justice Casey in *Lester*v. *United States*(1 C. Cls. 3L, 58), where he says: “He who insists upon them [forfeitures] must show a clear right to demand them, and even then the law will seize hold of slight circumstances to show that the right was waived,” citing in support numerous authorities.

The preparation of the advertisement, contract, and instructions to bidders are with the single purpose to bind the claiihant to a strict performance of the contract, with the one reciprocal provision in his favor as to compensation for services performed. This being so, any doubt should be construed in favor of the claimant. No undue advantage should be given the Government, but the same rule should apply in the interpretation of a contract as between private citizens. Upon this point this court, in the case of *Pratt*v. *United States*(3 C. Cls. R., 105, 110), said:

“ The law which binds a citizen to the performance of his • covenants with the Government will also protect him against all aggressions upon his rights under them:- A contract between the United States and a citizen is equally obligatory upon both. • The laws make no distinction as to parties, and when appealed to for redress is inexorable in its application.”

Or, as stated by the Supreme Court in *U. S.*v. *Stage Go.*(199 U. S., 414, 422) :

“ The same principles of right and justice which prevail between individuals should control in the construction and carrying out of contracts between the Government and individuals.”

'While it is conceded that the action of the Postmaster-General upon questions of fact arising in the administration of the postal laws and the performance of contracts are in general binding upon the contractor and not reviewable by the courts, still such action may be “ impeached by showing *30such a state of facts as constitute in law a failure on the part of the officer to discharge the duty imposed on him in substantial requirement with his duty in the premises.” *(Otis*v. *U.*#., 24 C. Cls. K.., 61, 72.) In other words, the action of the department must be reasonable and not arbitrary.

In the case of *Wreford*v. *U. 8.*(32 C. Cls: B.., 415), a mail contract was annulled for “ repeated failures,” but the action of the department failed to meet with the approval of this court and judgment was entered in favor of the claimant. The opinion does not discuss what constitutes repeated failures, but from the facts stated ruled against the department.

In view of the fact that what might be termed “ bona fide ” derelictions properly chargeable against the claimant were no greater, more frequent, or graver than customary in contracts of equal magnitude, we submit that the annulment of the contract was not justified. That mistakes and delinquencies have occurred, do occur, and will ever occur in our mail system is recognized by the fact that under the law the Postmaster-General is empowered to meet such delinquencies by the imposition of fines and penalties.

*Mr. George M. Anderson*and *Mr. Joseph Stewart*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

Peelle, Ch. J.,

delivered the opinion of the court:

This is a claim for extra or additional compensation for carrying the mails to and from the post-office and the Union Station at Omaha, Nebr., and for profits prevented by the cancellation of the mail contract between the Government and the claimant.

The advertisement for proposals recited, among other things, that proposals would be received for carrying the mails in the screen wagons prescribed by the department on the routes specified as “ screen-wagon, mail-messenger, transfer, and mail-station service ” in the city of Omaha, Nebr., ■being route No. 457005, “ between the post-offices and railroad stations,” steamboat landings, mail stations, electric and cable cars, etc., for the term from July 1, 1902, to June 30, 1906.

*31With said advertisement was a schedule showing, among other things, the service as it had been performed for the month ending July 27, 1901, namely:

> “ Union Station:

> “Illinois Central It. B. Co. (143077.).

> “Union Pacific B. B. Co. (157001).

> “ Chicago, Bock Island and Pacific Bwy. Co. (157064).

> “Missouri Pacific Bwy. Co. (157075).”

As the postal routes on the Chicago and Northwestern Bailroad, the Chicago, Milwaukee and St. Paul Bailroad, and the Wabash Bailroad, Nos. 135003, 143028, and 145061, respectively, all terminate at Union Pacific Transfer, Iowa (Council Bluffs), from which point their mail was carried into the Union Station on the tracks of the Union Pacific Bailroad Company (route 157001), the department, it appears, deemed it unnecessary to specify those roads in the schedule, and particularly as the mail trains of those roads were operated from Council Bluffs, Iowa, to the Union Station, Omaha, as Union Pacific trains and the Union Pacific Bailroad Company was paid therefor.

But the claimant contends that when he made his proposal he was not aware that he would be required to carry the mails from these three roads or from any road except those specifically mentioned in the schedule submitted with the advertisement.

. Unfortunately for this contention, however, there Avas submitted with the advertisement “ Instructions to Bidders,” Avhich, among other things, recited that the schedule submitted showed “ approximately the service as performed during the week named,” and for that reason bidders were admonished to “ personally inform themselves of the amount and character of the service that Avill be required during the contract term, beginning Avith July 1, 1902.”

Furthermore, bidders and their sureties were “ warned that they should familiarize themseUes with the terms of the contract, schedules of service, and instructions-contained herein before they shall assume any liabilities as such bidders or sureties, to prevent misapprehension or cause of complaint thereafter,”

*32As an additional precaution bidders were required in making their bids to use the forms prepared by the department, which the claimant did, reciting, among other things, that “ this proposal is made after due inquiry into and with full knowledge of all particulars in reference to the service, .and also after careful examination of the conditions attached to said advertisement, and with intent to be governed thereby.”

It will thus be noted that the service for which bids were advertised was only shown by the schedules approximately, and bidders were cautioned to personally inform themselves both of the amount and character of the service to be required, and then to certify that the proposal made by them was after due inquiry and with a full knowledge of all the particulars in reference to the service. This the claimant says he did, as shown in Finding III.

The advertisement cast upon the claimant the duty and responsibility, before he made his bid, of ascertaining for himself “ the amount and character of the service that will be required during the contract term,” and if he made due inquiry, as he says he did, before submitting his proposal he was undoubtedly advised of the amount and character of the service that would be required of him, which was to include all the mails entering the Union Station; hence whether we consider the claimant’s efforts to ascertain the particulars in reference to the service as insufficient or whether we consider him as having neglected to make due inquiry, we must consider him as having obtained the information he might by proper diligence have ascertained, especially when he says his proposal was made “ after due inquiry into and with full knowledge of all the particulars in reference to the service.”

There was no guarantee by the Government as to the amount of mail that the claimant would be required to carry other than all the mails entering the Union Station, and as to that he was admonished to make inquiry for himself.

The advertisement, made part of the contract, without doubt called for bids to carry all the mail from the Union Station in screen wagons prescribed by the department on the one route (457005) described as “ screen-wagon, mail-messenger, transfer, and mail-station service * * * be*33tween the post-offices and railroad stations ” in the city of Omaha; and when the claimant said he proposed “ to carry the mails of the United States from July 1, 1902, to June 30, 1906, on above-numbered route ” he meant all the mail entering the railroad stations, and therefore all the mail carried into the Union Station on route No. 157001 on the tracks of the Union Pacific Railroad Company.

The contract which the claimant signed was in conformity with the advertisement, and was equally as explicit, and obligated the claimant to carry the whole of said mail, whatever may be its size, weight, or increase ” during the term prescribed in the advertisement. That is to say, the claimant obligated himself “ to take the mail from, and deliver it into, the post-office, railroad stations, mail stations, electric or cable cars, and cars at such points and at such hours, under the directions of the postmaster at said city, approved by the Postmaster-General, as will secure dispatches and connections and facilitate distribution, and at the contractor’s expense for tolls and ferriage.”

The claimant could not have understood from that language that he was dividing the responsibility of carrying the mails on that screen-wagon route 457005 with some one else to and from the railroad stations. He must have understood, as by the language of the contract he was bound to know, that he alone was to take the whole of said mail from and deliver it into the post-office and railroad stations in said city, including all the mail arriving on the route of the Union Pacific Railroad.

The contract may have proved an unfortunate one for the claimant; but as by the advertisement and instructions to bidders the way was open to him to ascertain, if he did not do so, all the facts essential to enable him to know the amount and character of the service to be performed, his failure can not be charged to the Government, nor to its officers, especially since by the instructions to bidders he was informed that the schedule showed only the approximate service to be performed.

The service required of the claimant by the Postmaster-General, of taking the mail from the Chicago and Northwestern, the Chicago, Milwaukee and St. Paul, and Wabash *34railroad companies, entering the Union Station on the tracks of the Union Pacific Bailroad Company, as aforesaid, can not be considered either as new extra or additional service, within the meaning of these terms as adjudicated by this court *(Utah, Nevada and California Stage Co.*v. *The United*States, 39 C. Cls., 435; *Profit*v. *United*States, 42 ibid., 248), and must, therefore, be held to be part of the service contemplated and covered by the terms of the contract; and the claimant is not, therefore, entitled to recover for said service.

On May 20,1903, the Postmaster-General annulled the contract because, as set forth in Findings VIII and IX, the claimant failed and refused to comply with the same. In this respect paragraph 31 of the instructions to bidders provided that “ the Postmaster-General may annul a contract for repeated failure; for violating the postal laws; for disobeying the instructions of the Post-Office Department,” etc. They also specified the kind and number of horses and wagons, and how they should be kept, all of which, including the service, were to be subject to the approval and control of the postmaster; and the property was to be subject to frequent inspection to ascertain its condition; and the failure or refusal of the claimant to keep his horses, wagons, and harness in good order and appearance, or to obey the instructions of the Postmaster-General, was sufficient cause for the annulment of the contract. The tenth paragraph of the contract is to the same effect.

The authority given to the Postmaster-General over the mails is sufficiently broad and comprehensive to enable him to annul a contract whenever a contractor refuses to perform according to his contract and the regulations of the Post-Office Department or whenever, in his judgment — unclouded by fraud or gross error — the public interests demand it. He may discontinue the entire service under the contract upon the payment of one month’s extra pay *(Slavens*v. *United States,*38 C. Cls. R., 574, affirmed by the Supreme Court, 196 U. S., 229, and other authorities which might be cited.) But in the present case the contract was annulled because of the repeated failure of the contractor to comply with his contract arid the regulations of the department, as set forth in Finding VIII, and, therefore, the question of one month’s extra pay does not arise.

*35There is no contention that the Postmaster-General grossly abused the discretion lodged in him to annul the contract. The facts upon which he based his action were ascertained by the officers of the Government in the usual way; and there is nothing in this case which would justify the court in holding that he abused his discretion, even if the court felt at liberty to go behind the facts upon which he based his action.

The failure of the claimant to comply with the contract and the instructions of the Postmaster-General as herein set forth was not only sufficient ground to authorize the Postmaster-General to annul the same (sec. 1292, Postal Laws and Regulations, under act Aug. 3, 1882, 22 Stat. L., 216), but Avas sufficient authority for the Postmaster-General to withhold payment to the claimant for service performed and to relet the contract or service to another at the claimant’s expense, which was done, and therefore he is not entitled to recover on this branch of the case.

The claimant entered into the contract after due inquiry as to the amount and character of the service to be performed, as he was admonished and warned to do before making his bid, thereby obligating himself to the performancé of the service so contracted to be performed under the direction of the Postmaster-General and the regulations of the Post-Office Department, and he must therefore be held to the contract he made and to the performance of the service thereunder, as was doubtless understood and contemplated by the parties at the time of the execution of the contract.

The petition is dismissed.