#### THE CHICAGO AND ALTON RAILROAD COMPANY v. THE UNITED STATES.

[No. 30234.

Decided May 29, 1911.]

*On the Proofs.*

A mail transportation contract requires the railroad to deliver mails at Bast St. Louis 16 times a day. A washout renders this impossible. The railroad accordingly, with the approval of the post-office authorities, charters a steamboat and delivers the mails at the post office in St-. Louis twice a day. The post-office authorities treat this as a temporary substitute service and allow 50 per cent remuneration for it. The railroad accepts the compensation so allowed apparently without objection or reservation. It now sues to recover for its service so rendered *in quantum menil.*

I, Where the delivery of the mails at the point named in the- contract is rendered impossible by a landslide, and the mail transportation contractor, a railroad, transports them by boat and delivers them at a point beyond the point of delivery, to wit, at the post office in St. Louis twice a day, instead of 16 times a day at Bast St. Louis, and the service is accepted by the post office as a defective service in lieu of the regular service, and it allows and pays therefor 50 per cent of the contract compensation, which payment is received and accepted without protest or objection by the claimant, no-action will lie for further compensation.

*11.*Where the mail transportation contractor carried the mails to a point beyond the agreed point of delivery, with the assent of the post-office authorities, but delivered them a less number of times per day than the contract required, the service was not an extra service, but a different service, a new service accepted in lieu of an agreed service which had been rendered impossible of performance.

*397
      *The Reporters'*statement of the case:

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

I. The Chicago and Alton Railroad Company was organized in 1861 under the laws of the State of Illinois, and the Chicago and Alton Railway Company was organized in 1900 under the laws of said State.

On the 14th day of March,*1906, the above two companies were consolidated into one company, taking the name of said Chicago and Alton Railroad Company. Said consolidation was effected by certain articles of agreement made and executed between said companies on the day above mentioned, the parts whereof which are applicable to the issues in this case are as follows:

“Aeticle I. Such consolidation is hereby effected by consolidating and merging all and singular the property and franchises of the party of the first part into the party of the second part. * * *

“Art. VI. All and singular the rights, powers, privileges, immunities, and franchises, and all of the railroads, real and personal estate, easements, fixtures, equipments, choses in action, and property and assets of every kind, nature, and description, belonging to either of the parties hereto, shall be and hereby are vested in the consolidated company, without any further act, deed, or assurance being required in the premises, in manner and form as set forth in these articles of consolidation.

“Art. VII. The priority of the existing liens upon the several properties and franchises of the respective parties hereto shall remain in full force and effect and the rights of every existing creditor and holder of existing obligations of either of said companies, respectively, to resort to the assets, property, and franchises of that company for the satisfaction of his claim, shall remain unimpaired and unaffected.

“ The consolidated company covenants and agrees that it will not at any time make any mortgage or create any lien upon its properties or franchises, or upon any part thereof which shall impair any such rights, or which shall be or become superior to the lien in and by Article V hereof charged upon the franchises and property of the first party to secure the payment of existing car trust and equipment notes and certificates issued or guaranteed by the first party. The directors of the consolidated company are hereby authorized to cause to be executed, acknowledged, delivered, and re*398corded such instruments or deeds of further assurance as may be deemed necessary to carry out the purposes and intent of these articles of consolidation, so that, as provided in the statute in such case made and provided, this consolidation shall not affect suits pending in which such consolidating corporations shall be parties nor affect causes of action nor the rights of persons in any particular.

“ART. VIII. * * * ' The by-laws of the second party are hereby made and accepted as the by-laws of the consolidated company. Said by-laws may be changed at any time as provided by law and said by-laws. The present executive committee of the second party shall constitute the executive committee of the consolidated company, and the members thereof shall hold office for the same period for which they have heretofore been respectively elected. All of the officers, employees, and servants of the second party are hereby made the officers, employees, and servants in their respective positions of the consolidated company, clothed with the same authority and subject to the same restrictions as have heretofore been given to and imposed upon them as officers, servants,- and employees of the second party. The consolidated company shall have and retain in addition to all the rights, privileges, franchises, and immunities of both of the parties hereto, all power and authority in every respect whatsoever, now or hereafter conferred upon railroad corporations by the laws of the State of Illinois, or of any other State or Territory in which the lines of the railroad of the consolidated company, or part thereof, are now or may hereafter be situated.”

And the contract to carry the mails hereinafter mentioned was made with said Chicago and Alton Railway Company, and the claim for compensation therefor was the claim of said Chicago and Alton Railway Company, but by the said consolidation of said two companies the same became the property of the Chicago and Alton Railroad Company, the claimant herein.

II. The Chicago and Alton Railroad Company owned and operated from July 1, 1899, to June 30, 1901, and the Chicago and Alton Railway Company operated for said Chicago and Alton Railroad Company from July 1,1901, to June 30, 1903, a system of railways in the States of Illinois and Missouri, including (1) a line from Chicago through Alton and Granite City to East St. Louis, all in Illinois, and (2) a line from Wann, in Illinois, to Kansas City, in Missouri, Alton by said line of railway being 23.18 miles and Granite City *399'5.54 miles from East St. Louis, and East St. Louis being" 3.8 miles from the railway station in St. Louis; Alton, Wann., Granite City, and East St. Louis all being on the eastern, shore of the Mississippi River.

Under agreements closed by correspondence between the respective companies and the authorized officers of the Post. Office Department, the Chicago and Alton Railroad Company transported the United States mails from July 1, 1899,, to June 30, 1901, and the Chicago and Alton Railway Company transported said mails from July 1, 1901, to June 3.0, 1903, over two routes designated and established by the postal authorities on said lines, as follows: Route No. 135017, between Chicago and East St. Louis; route No. 145022, between Wann and Kansas City. During these periods on route No. 135017 the said companies transported the mails on 16 trains a day to and from East St. Louis, such trains being operated over the properties of the Terminal Railroad Association of St. Louis between said point and St. Louis; and on said route transported mails on 6 trains a day to and from Granite City, such trains being operated over the properties of the St. Louis Merchants Bridge Terminal Railway Company between that point and St. Louis. Such mails were carried to and from the Union Station at St. Louis, and between said station and the post office in S.t. Louis a transfer company, under a separate contract with the Post Office Department, carried all the mails between said Union Station and said post office.

III. The railway tracks connecting Granite City and St. Louis cross the Merchants Bridge, and those connecting East St. Louis cross the bridge of the Terminal Railroad Association, and the mails carried thereon constituted distinct mail routes, numbered, respectively, 145043 in the name of the St- Louis Merchants Terminal Railway Company,.and 145074 in the name of the Terminal Railroad Association of St. Louis. The trains of all railway companies operating-between St. Louis and points to the east thereof were run over the properties of said two terminal companies, and for postal purposes were trains of the contracting bridge companies, and said terminal companies received the entire compensation for carrying the mails on said routes. There *400was no physical transfer of mails between the railway trains and the trains of said terminal companies at East St. Louis or Granite City, but said railroad companies’ trains ran into and out of St. Louis on the tracks of said terminal companies and the mails remained on those trains.

IY. During the periods set forth in Finding II, mails for and from St. Louis, and mails both westbound and eastbound for or from points beyond, which crossed the Mississippi Eiver at St. Louis, were carried on other postal routes by at least 12 other railroad companies. The stated Western terminus of said other routes was East St. Louis, but on a number of those the mails at said time passed to and from said route of the St. Louis Merchants Bridge Terminal Company at Granite City.

V. A flood occurred on the Mississippi Eiver in June, 1903, which prevented the Chicago and Alton Eailway Company from operating its trains to East St. Louis, the terminus of its route No. 135017, and that company thereupon arranged for the transfer of passengers, baggage, express, and mail by boats between its station at Alton and a wharf at St. Louis.

It was possible for the trains of all the other railroads to reach Alton, some on their own tracks, and others on the Chicago and Alton tracks, and during the continuance of the flood the trains of some of the roads were operated to Alton and the mails were transferred between that point and the wharf at St. Louis by these boats.

VI. It is a long-established custom of the Post Office Department when there is an interruption to the operation of the service on some part of a railroad mail route to utilize any means the railroad company offers to carry the mails to the end of that company’s mail route. The contract for the carrying of the mails is not suspended, but such substituted service is regarded and accepted by the Post Office Department as in lieu of the agreed service by trains. This practice is expressed as section 1185 of the Postal Laws and Eegula-tions, which is in the following words:

“ Whenever a railroad company finds it necessary to transfer at the place of a wreck or washout, its officials and employees will be expected to see that the mails and railway *401postal clerks are promptly transferred and every possible convenience furnished the clerks for working their mails.”

This said emergency boat service was inaugurated by the Chicago and Alton Eailway Company of its own volition on June 7, 1903, and was accepted by the Post Office Department. The following correspondence with reference to said emergency service took place between the general superintendent of said railway company and the superintendent of Eailway Mail Service at St. Louis:

“ Chicago, *June 10, 1903.*

“ S. P. Taut,

“ *Superintendent Railway Mail Service,*

“ *Si. Louis, Mo.:*

*“*We are handling mail through Alton on our line for all points north and east; also in opposite directions.

“Also handling Wabash, Big Four, and other mails in Alton. Will you please advise if you will arrange for compensation for this ?

“ J. H. BARRETT.”

“ Jeras 11,1903.

“ General Superintendent Barrett,

“ *Chicago & Alton Railway,*Chicago, *III.:*

“ My understanding is that your company, the Burlington, Big Four, and Wabash have boats chartered for service between this point and Alton, handling passengers and baggage. We are dispatching all mails which we can advance to wharf boats and suppose companies will handle to best advantage, in view of fact that they are unable to fulfill their contract by delivering to or receiving from the Terminal Eailroad Association at either East St. Louis or Granite, Til. This is simply a question of advancing mails, and we are treating the matter the same as we would in case of a serious wreck upon one line — that is, taking advantage of the next best dispatch regardless of line of regular dispatch. All companies . reco'gnize right of department to do this, and we are following that plan.

“ Taet.”

VII. During the period in question and thereafter the practice of the Post Office Department as to all routes of railroad companies in cases of failures to operate the scheduled mail trains on their railroad routes was to make deduction under authority of section 3962 of the Eevised Statutes and *402tbe Postal Regulations, section 1334, from the compensation, of such companies. Section 1334 is in words as follows:

“ Deductions will be made within the limit fixed by law (sec. 1332), the amount thereof to depend upon the nature or frequency of the failure and the importance of the mail.

“ RAILROAD SERVICE.

“ 2. The compensation for service on each route shall be apportioned, 'as nearly as practicable, among the several trains carrying mail, according to the average weight of mail carried by each train.

“ 3. Deductions will be made' for failure to perform any trip, or a part thereof, on the basis of the mileage and the average weight of the mail carried by the train.

“ 4. A train will be considered as failing to perform service when it becomes 24 hours or more late, and will be charged with failure from the point where it became 24 hours late to the end of its run, or to the point at which it becomes less than 24 hours late.

“ 5. If a train carrying mail is made up, and covers any part of the failing train’s run within the 24-hour limit, and is in addition to the regularly scheduled trains performing-mail service, such service will be credited in lieu of the train which is 24 hours or more late.

“ 6. Unless it is shown to the satisfaction of the Post Office Department that the failure to operate a train or trains was unavoidable, the deduction will be made at pro rata, or 100 per cent of the amount due to be earned by them between the points of failure. If the failure was unavoidable, the route reopened without unnecessary delay and the mails not diverted, the mail service being reestablished promptly, 50 per cent of said amount will be deducted. Where, however, there has been a total suspension of mail service over all or any part of a route for a period of six days or more, deduction will be made for the entire period at 100 per cent of pro rata, without regard to the cause of the failure or diversion of mails.

“ 7. In case of an interruption of sufficient duration to make it necessary for the Post Office Department to forward the mails over other lines, no compensation will be allowed.

“ 8. A pro rata deduction will be made for all failures to run railway post-office cars, the deduction being made for the actual mileage omitted.

“ 9. When a car is not run on its regular train, but is run later on another train and in use for mail service — that is, not deadheaded — no deduction will be made.

*403“ 10. No deduction will be made for detours of railway post-office cars when they are used during such detours by the Post Office Department.

“ 11. When a train is detoured a deduction will be made, based upon the estimated value of the local service omitted— that is, the service between, the points of detour — but in no case will the deduction be in excess of 50 per cent of the value of the train’s service between such points. If, however, satisfactory provision is made for such local service, no deduction will be made.

“ 12. Trains which the department regards as being of special importance as mail trains will be subject to deductions for failure to arrive at junction and terminal points at the time fixed by schedule unless held for mail connections, or unless satisfactory explanations be given in due time.

“ 13. Applications from railroad companies for remission of deductions made from their compensation for carrying mail will not be considered unless filed with evidence in'the office of the Second Assistant Postmaster General within six months from the date of notice by the Post Office Department to the railroad company that such deduction has been ordered.” (Sec. 1334, P. L. and R.)

By reason of the failure of the Chicago and Alton Railway Company to operate trains, run railway post-office cars, and carry mails in accordance with its schedule over the whole or portions of routes Nos. 135017 and 145022 during the quarter ended June 30, 1903, the Post Office Department-made certain deductions from the pay which would have been allowed for service on said- routes had there been no delinquencies. The amount of deductions on account of said failures to carry mails with the frequency required by the contract of said railway company during the period in question totaled $459.46. These deductions never exceeded 50 per cent of the actual ascertained value of the service omitted, the Post Office Department having given due consideration to the substituted service by boat. Such boat service offered by the Chicago and Alton Railway Company and accepted by the Post Office Department consisted of only two trips a day each way and was therefore a delayed and inferior service to that contemplated in the contract, and deductions were made from the pay of said corn-puny for the consequent delay to the transportation of the *404mails, in accordance with the established practice of the Post Office Department and the provisions of Postal Eegu-lations No. 1334. The said railway company made no request for a remission of the deductions during the six months allowed by said section of the Postal Laws and Eegu-lations.

VIII. Under the statement of service required to be performed on said routes Nos. 145043 and 145074 the trains of the Chicago and Alton Eailway Company were operated and mails delivered to and taken from the Union Station at St. Louis. During the performance of this established boat service the mails were delivered to a wharf at St. Louis. The distance from said wharf to said post office was about the same as to the Union Station, and the company delivered the mails to the post office rather than to said Union Station, because the party having; the contract to deliver mails between the Union Station and the post office refused to perform that' service.

IX. The emergency service was provided by the Chicago and Alton Eailway Company by hiring the Eagle Packet Company to carry passengers, baggage, mail, etc., between Alton and the wharf at St. Louis and agreeing to pay said Eagle Packet Company for carrying the mail between said points 15 cents per 100 pounds, and in hiring the Columbia Transfer Company to carry the mails from the wharf in St. Louis to the post office.

Said packet company and transfer company carried 915,037 pounds of mail during said emergency service for the Chicago and Alton Eailway Company, the Burlington, the Big Four,, the Wabash, and the Clover Leaf roads, which was about 62 per cent of the average mail usually carried by said roads for said time; of this amount 269,653 pounds was for the Chicago and Alton, and thec balance for the other said roads.

The total amount paid by the Alton company to the Eagle Packet Company for carrying its own mails during the whole of said period was $404.50, and the total amount paid the Columbia Transfer Company for carrying all the mails was $266.25, of which last amount it received from the Bur*405lington, the Big Four, the Wabash, and the Clover Leaf roads the sum of $199.68 as their proportion, making the amount actually paid by the Chicago and Alton to the transfer company $66.57. This makes the total amount paid by the Alton company for the carrying of its mails by this emergency service during the whole period $471.07.

The other railroads whose mails were carried by said Eagle Packet Company during said emergency service also paid said Eagle Packet Company for such service for them.

As to the other railway companies for which mail was carried by said packet company and said transfer company under their agreement with the Chicago and Alton Eailway Company there is no positive evidence as to the amount carried, but according to the wreights ascertained from weighings by the department in the spring of 1903 the average weight of mail carried for 12 days under normal conditions by the Vandalia, the Southern, the Illinois Central, Louisville and Nashville, Mobile and Ohio, and the Iron Mountain roads was 2,128,320 pounds, 62 per cent of which is 1,319,558 pounds, making a total amount of mail carried for said 11 roads during said emergency service of 2,234,595 pounds, which if paid for at the average contract price for delivery to East St. Louis, would amount to $2,221.83. According to the same percentage the bridge service during said period would have amounted to $1,033.33.

X. During said 12 days of improvised mail service the officers and agents of the Chicago and Alton Eailway Company performed considerable labor in and about the same.

*Mr. Benjamin Garter*for the claimant. *Mr. F. G.arter Pope*was in the brief.

*Mr. B. B. Ashbaugh*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

BakNet, J.,

delivered the opinion of the court:

This is a. suit brought by the claimant to recover upon *quantum meruit*compensation for an emergency mail service established and conducted by the Chicago and Alton Eail-way Company between Alton, Ill., and St. Louis for 15 days *406in June, 1903, during which time regular communication between St. Louis and the east over the bridges across the Mississippi Eiver at East St. Louis and Granite City was prevented by a “ washout ” occasioned by a heavy rainfall. The Chicago and Alton Eailway Company was under contract. during said period to carry mail to East St. Louis, its western terminus, from which point a bridge extends across the Mississippi Eiver to St. Louis, and over which the trains of said railway company, as well as the trains of other railroad companies, pass in making connection with St. Louis. Some of the railroad companies cross the river to St. Louis over a bridge at Granite City, a short distance to the north. While the trains of all these companies pass over these bridges directly to St. Louis without change, they have only trackage rights over the same, and the mail routes from East St. Louis and Granite City to St. Louis over them are entirely distinct from the mail routes from the east to those places.

During the 15-day period mentioned the stations and railroad tracks both at East St. Louis and Granite City were submerged so as to prevent access to St. Louis over these bridges by any of the railroads coming from the east, and in consequence mail service by these routes for that period was interrupted. In this emergency the Chicago and Alton Eail-way Company, which was operating through Alton, Ill., en route to East St. Louis, chartered two steamboats plying on the Mississippi Eiver to carry its passengers and baggage, as well as its mail, between St. Louis and Alton until communication by way of the bridges should be reestablished. This emergency service was inaugurated June 7,1903, and on June 10 thereafter the general superintendent of said railway company wrote to Mr. Taft, superintendent of the Eailway Mail Service for that district, informing him of this fact and asked: “ Will you please advise if you will arrange for compensation for this? ” Mr. Taft’s reply is given in full in the findings, and while he did not answer the above question as categorically as he might, his answer plainly indicated that this emergency service would be accepted in lieu of the regular contract, service upon the usual terms. The other railroad companies running into St. Louis from the east *407over these bridges availed themselves of this emergency boat service, inaugurated by the Chicago and Alton Eailway, for the transportation of their passengers, baggage, and mail, and afterwards contributed their proportionate share in payment for the same. Necessarily this boat service delivered the mails at the wharf in St. Louis, and the party having the contract to carry the mails between the Union Depot at St. Louis and the post office refusing to carry them from the wharf to the post office, the Chicago and Alton Eailway Company contracted with and paid another company for such service.

It is unnecessary to say that this emergency service was defective mail service under the contracts of the railroad companies for the transportation of the mails, and was so considered and decided by the Post Office Department; and pursuant to section 3962, Eevised Statutes, and the regulations thereunder, which are quoted in the findings, the Post Office Department deducted 50 per cent from the contract price of the railroads thus affected by this *“*washout ” during said period of 15 days.

It appears by the findings that during the time of this improvised mail service the Chicago and Alton *Railroad*Company was the owner of the railroad which performed the service, but that the Chicago and Alton *Railway*Company was then operating the road, and the contract of the Government for the transportation of the mails was with the latter company. After the performance of this service (March 14, 1906) the said two companies entered into articles of agreement, by the terms of which they were consolidated under the name of one of them, the Chicago and Alton Eailroad Company. As will be seen by extracts from these articles contained in the findings, this consolidated company by virtue thereof took title to all of the “ choses in action and property of every kind and description ” belonging to either of said companies thus consolidated, including, it is unnecessary to say, the claim against the Government involved in this suit.

It is contended by the claimant that it is entitled to recover upon *quantum meruit*and entirely outside of its contract, excepting only as that may be a guide as to the measure *408of damages, for carrying all of the mails which were carried by this emergency boat service; the theory of such contention being, as we understand it, that the original contract being for the carnage of the mails to East St. Louis and such emergency service having carried them to the post office in St. Louis, this difference in one of the termini of the contract route creates an entirely new obligation. On the other hand, it is contended by the Government that this improvised mail service was accepted by the Government as a defective service in lieu of the regular service contracted for,’ and that it was for such defective service that the Chicago and Alton Railway Company received 50 per cent of the contract price. We think the contention of the Government is right. The Chicago and Alton Railway Company had contracted to carry the mails to East St. Louis, and on account of the *“*washout ” it could not do so. It had not only contracted to carry the mails to East St. Louis, but it was under obligation to do so upon trains which would pass directly from that point over the bridge to St. Louis, because the bridge company operated no cars or trains. It will thus be seen that if the Post Office Department had not accepted this emergency mail service the Chicago and Alton Railway Company would not have been able to perform its contract at all during said 15 days, and instead of receiving 50 per cent of the contract price would have received nothing. To state the case in another way, the Chicago and Alton Railway Company was under contract to carry the mails to East St. Louis upon trains which it would haul over the bridge to the Union Depot in St. Louis 16 times a day each way; a washout occurred which made this impossible of performance for 15 days, and during that period it carried the mails to St. Louis by an improvised mail route twice a day instead, which service was accepted by the Government at a reduced rate.

This service was in no proper sense of the word an *extra*service; it was a *different*service from that contemplated in the contract, but this difference was only as to the point where the mail was to be delivered. In short, it was a new service accepted in lieu of an agreed service impossible of performance.

*409Of course the claimant can not recover in this suit upon *quantum meruit*unless it is shown that the Government is under an obligation either express, or implied to pay for the services rendered a sum in addition to that already paid. It. is not claimed that there was any express contract, and we do not see how it can be said that the facts justify the conclusion that there was an implied contract to that effect.

It should be noted that it is contended by the Government that there can be no recovery in this case for the reason that, the consolidation of the Chicago and Alton Railway Company and the Chicago and Alton Railroad Company under the name of the latter company, before particularly mentioned, constituted a transfer and assignment of the claim in this suit, which is void under section 3477, Revised Statutes, which provides, in brief, that all transfers and assignments of claims against the United States shall be void if made before the allowance of such claims and the issuing of a warrant for the payment thereof.

As this suit is decided against the claimant upon other grounds, this contention has neither been discussed nor decided.

It follows from the foregoing opinion that the defendants’' motion for a new trial must be allowed. The former findings of fact are withdrawn and new findings this day filed with conclusion dismissing the petition; and it is so ordered*