#### CHARLES F. HUNT, EXECUTOR OF THE ESTATE OF WILLIAM WEIGHEL, DECEASED, v. THE UNITED STATES.1

[No. 22532.

Decided January 26, 1920.]

*On the Proofs.*

*Mail contract; parties in interest.*— A contractor enters into an agreement with the United States to furnish certain mail-wagon service. The subcontractor performs all of the service, including the extra service, which is the basis of this suit. The *78contractor receives all moneys paid under tlie contract and turns tlie *same over to the*subcontractor, who, in turn, settles in full with the contractor. The contractor having no interest in the claim can not maintain an action for its recovery in his own right.

*The Reporter's*statement of the case:

*Messrs. A. R. Serven*and. *Albert G. Travis*for the plaintiff. *Serven & Joyce*were on the briefs.

The general proposition of law is well established that a subcontractor cannot pass by his immediate employer and sue the principal or proprietor of the property upon which the work was done unless the latter has expressly assumed the obligation. 9 Cyc., 703. The *Pneumatic Gun-Garriage & Power Go.*case, 36 C. Cls., 71, is conclusive on the point. There claimant sublet. Defendant alleged that the only damage sustained was sustained by the subcontractor and not by the claimant, and that for this reason the action could not be maintained. It appeared also that the claimant had not paid the subcontractor. Held, that the damage sustained by the claimant was the same as the damage sustained by the subcontractor. Judgment for the claimant.

The legal question to be determined here is whether under the terms of the contract the Postmaster General could require claimant to perform the said service to and from the street cars without additional compensation.

By the advertisement, which is made a part of this contract, the service to be performed thereunder comprised the carrying of mails “ between the post offices and railroad stations, between the post offices and steamboat landings, between the post offices and mail stations, and between the several railroad stations, steamboat landings, and mail stations.”

The record shows that in connection with the preparation of his bid for the service covered by this contract, claimant did apply to the postmaster at Chicago, and raised the specific question whether finder this contract it would be necessary to perform service to and from the street cars. He was informed that such service would not be required and that the data for the street cars had been prepared and furnished *79tbe Post Office Department for the purpose of its inclusion in the advertisement, but it had not been included therein. Claimant also knew that the preceding contractor had been requested to perform the service to and from the street cars and had declined to do so on the ground that such service was not included within the terms of his contract, and he had not been required^ to perform the same. Claimant also knew that this service was then being performed by the employees of the Government. He therefore prepared his bid without reference to the service to and from the street cars upon the express understanding that it would not be required of the contractor for this route. His said bid was accepted and the contract herein based thereon.

Whether under these circumstances this contract, including said advertisement, which did not contain the slightest hint that the contractor would be obligated to perform service in carrying mails to and from street cars, did so obligate him, must depend upon the proper construction to be given to its provisions.

In *United States*v. *Utah N. <& 0. Stage Go.,*199 U. S., 414, 433, where a mail messenger contract was under consideration, the court says:

“ 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. The phrase £ new or additional service ’ is not one of exact meaning, defining the precise extent of the obligation incurred, and permits the court to give it a reasonable construction with a view to doing justice between the parties. In giving a proper construction, the court is required to examine the entire contract, to consider the relation of the parties, and the circumstances under which it was signed. *Rock Island RaiVioay*v. *Rio Grande Railroad,*143 U. S., 596, 609. It was said by Mr. Justice White, in *ORrien*v. *Miller,*168 U. S., 287, 297:

“ ‘ The elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties, and the intention which they may have manifested in forming them. *Boardman*v. *Reed,*6 Pet., 328; *Ganad Go.*v. *Hill,*15 Wall., 94.’

*80“And upon the same subject, Mr. Justice Bradley, in the case of *Canal Co.*v. Hill, 15 Wall., 94, 99, said:

“ ‘ We should look carefully to the substance of the original agreement * * * as contradistinguished from its mere form, in order that we may give it a fair and just construction, and ascertain the substantial intent of the parties, which is the fundamental rule in the construction of all agreements.’ ”

Applying these principles to the facts in the case at bar, it is submitted that this contract when executed could not have contemplated or intended that the contractor for said service should be required to perform any service to atid from the street cars. In searching for the real intent of the parties to this contract we find that, the post-office authorities had the information concerning the street car service for consideration in connection with the preparation of the advertisement furnishing informatiion to prospective bidders for this route as to the service then being performed and the probable additional service that would be required. At that very time the record shows that service to and from the street cars was being performed by employees of the Post Office Department. The record also shows that the then contractor on this route had been requested to perform this street car service but had declined to do so on the ground that his contract did not obligate him to do it, and that he had not been required to perform this service. Notwithstanding all this, no intimation whatever was contained in the advertisement that the new contractor might be required to carry mails to and from the street cars under the terms of his contract for this route. As such information had not been included in this advertisement, and notice regarding same thereby given to bidders, the postmaster at Chicago informed claimant’s representative that service to and from street cars would not be required of the contractor on this route, when he applied for information as to what probable additional service might be required, as he was requested to do by section 21 of the instructions to bidders, and especially when he inquired specifically as to performance of the street car service.

In the light of this situation no experienced and careful mail contractor could foresee that he might be called upon to *81perform the service to and from street cars under his contract for this route. In fact the omission from the advertisement of any reference to this street car service then being' performed by Government employees, and the omission of any intimation that such service might later be required of the contractor, was a warranty that the contractor would not be called upon to perform such service without additional pay. In the *United States*v. *Utah N. dk O. Stage*Go., sufra, the court held that an unintentional omission of a small part of the service then being performed amounted to such a warranty, because the information regarding it was peculiarly in the possession of the post-office authorities. If such an omission constituted a warranty in that case, then certainly the deliberate omission of the information regarding the street car service in this case coupled with the information from the postmaster must also be held to constitute such a warranty and an estoppel.

While it is true that in *Slavens*v. *United States,*196 U. S., 229, the court held that the Postmaster General was authorized to require the contractor to carry mails to and from street cars at street intersections, without additional compensation, the circumstances there were very different from the case at bar.

It required, as the court intimated, a very liberal construction of the language in the Slavens contract to cover the street-car service as an obligation of the contractor under his agreement. In the case at bar it is not seen even with the most liberal interpretation possible to be applied to the language of the contract when taken as a whole, and the circumstances are remembered under which the agreement expressed by the contract was reached by the parties, how it can be held to have required Weighel to perform service in connection with the street cars. In the Slavens case the changed service resulted in a very large reduction of claimant’s expenses, while here it resulted in a great increase in the expenses.

Under the doctrine of *noscitur a sociis,*there is grave doubt, even without regarding the special circumstances under which this agreement was reached, that the mere *82stopping of a street car at any corner thereby establishes a railroad station at every such corner within the meaning and intent of the words “ railroad station ” as contained in this mail contract. To carry this construction to its logical conclusion would seem to mean that if the Postmaster General chose to employ any other class or classes of vehicles with which to carry mails, whatever points at which such vehicles might stop would thereby become either “ railroad stations” or “mail stations.” Such a construction would put the contractor’s financial life absolutely at the mercy of the Postmaster General, as it would be utterly impossible for a contractor, to determine with any degree of certainty what the service required under his contract might be expected to cost.

Under the rule laid down by the Supreme Court as to the reasonable limit for increasing a mail contractor’s work it would appear that the increase shown here was of such an amount as could not possibly have been foreseen by an experienced, careful, and prudent mail contractor and was sufficient to ruin the contractor by such unanticipated demands. Even had there been no assurance given this contractor by the proper authority when preparing his bid that he would not be required to perform any street-car service on this route, this enormous increase in the cost of the service demanded of him would fully justify the allowance of additional compensation therefor, as it did in the Stage Company case. In that case the increase amounted to about 100 per cent. But here, in addition to increasing the contractor’s expenses 400 per cent for this part of the service, he not only had received no intimation that such service would be required of him, but had been assured by the proper authority, on the best of reasons, to the exact contrary, that it would not be required of him.

The court in *Alvord*v. *United*States, 95 U. S., 856, 359, stated:

*“*If this mail could have been carried by the same number and character of coaches run for the same number of days in the week which were stipulated in his contracts, perhaps no additional compensation would have been due. But the court distinctly finds that under the order, which he had no *83right to resist, he was compelled to put on five additional coaches per day on some of his routes, and at all times and on all his routes one or more additional coaches were used exclusively for the increased mail. For this service, altogether beyond what his contract required of him, he is entitled to compensation on every principle of law and justice.”

In that casé mail being carried by others was temporarily diverted to the routes covered by Alvord’s contract.

In *United States*v. *Otis,*120 U. S., 115, the Supreme Court affirmed a judgment of this court holding that claimant was entitled to compensation for service not referred to in the advertisement, which at the time claimant’s contract was executed was being performed by others.

It is therefore apparent that where service was being performed by others, when claimant’s contract was executed, and for several months after it became effective, and where no notice of a probable change of such service was contained in the advertisement, so as to include it in the terms of such contract, the .courts have heretofore held that such service is not changed service,” as this phrase is used in the contract, and therefore that the contractor performing such service is entitled to additional compensation on that account.

*Messrs. George M. Anderson*and *Joseph*Stewart, with whom was *Mr. Assistant Attorney General Franh*Davis, *jr.,*for the defendants.

1

 Appealed.

Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the executor of the estate of William Weighel, deceased, for the sum of $52,327.60. On the 17th day of January, 1895, William Weighel entered into a contract with the Postmaster General of the United States to perform covered regulation mail messenger, transfer, and mail station service in Chicago, Ill., on mail route No. 235001 for the period from the 1st day of July, 1895, to the 30th day of1 June, 1899. Among other things the contract provided: “ To carry said mail, using therefor wagons of the kind hereinafter described in sufficient number to *84transpox-t the whole of said mail, whatever may be its size, weight, or increase during the term, of this contract * * * and so to carry until said schedule is altered by the authority of the Postmaster General ” * * * and “ to perform all new or additional or changed covered regulation Avagon mail messenger, transfer, and mail station service that the Postmaster General may order at the city of Chicago, Ill., 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 from time to time for special or advance trips as the Postmaster General may require, as a part of such new or additional service.” And the contract further provided: “ It is hereby stipulated and agreed by the said contractor and his sureties that the Postmaster General may change the schedule and termini of the route, vary the routes, increase, decrease, or extend the service thereon, without change of pay; and that the Postmaster General may discontinue the entire service whenever the public interest, in his judgment, shall require such discontinuance.”

At the time the contractor Weighel bid on this route and entered into the contract with the Government, no mail service in the city of Chicago was being performed to and from street cars by contractors who Avere performing the same mail service which was bid for by the said contractor, nor did the proposal of the defendants for mail service on this route mention service to and from street cars, although the proposal to bidders published by the defendants for the period beginning July 1, 1899, did mention specifically electric and cable cars. The aforesaid contractor, through his agent, was informed by the postmaster of Chicago, who was authorized by the Postmaster General of the United States to give information to bidders, that the bidder obtaining the contract for the performance of mail service on route 235001 for the period set out in the findings would not be required to perform mail service to and from street cars.

*85During the period covered by the contract, the subcontractor performed the service required by the contract, and all new and additional service of the kind and character referred to in the advertisement and the contract for this service the subcontractor has been paid.

Under orders issued by the Postmaster General, which orders are set out in the findings, the subcontractor was required to perform mail service to and from street cars in the city of Chicago. As a result of these orders the subcontractor had to make to and from street cars 523,276 trips, and was obliged to employ 24 men, 4 double vans, and • 7 single wagons to perform the service, which had been previously performed by 4 drivers and 4 single wagons, all of which greatly increased the expense of the service and imposed upon him duties and undertakings which were not contemplated in the contract. The value of the service rendered by the subcontractor in the making of the trips imposed upon him by the orders of the Postmaster General to and from street cars was $52,327.60, no part of which amount has been paid to the subcontractor nor to anyone else. This service was performed under protest, and the contractor notified the defendants that compensation therefor would be demanded. The Government contends that the Postmaster General under the authority conferred upon him by the contract in this case had a right to require the contractor to render new or additional mail messenger or transfer service, and that the trips to and from street cars was such new and additional service as was provided for in the contract. We do not think so. The service required was of an entirely different nature from that described in the contract, imposed upon the contractor very great burdens, and involved him in great expense which he could not have foreseen or guarded against when he entered into the contract.

We think this case is governed by the principles laid down by the Supreme Court of the United States in the case of *United States*v. Utah, *Nevada & California Stage Co.,*199 U. S., 414, 422, 423, and if the plaintiff’s decedent, in this case had performed the services for which he brings suit, *86we would not hesitate to render a judgment in his favor. But it appears from the evidence in this case that Weighel, the contractor, on February 6, 1895, sublet his contract to one Travis, who agreed to perform all the service which was required of Weighel by his contract with the Government. Travis complied with the terms of his subcontract; he also performed all the service under Weighel’s contract with the department, and was recognized by the department as subcontractor. Weighel had no further interest in the contract, except that he paid over to Travis the sum of $72,400 per annum, which the Government paid him as the original contractor. The trips which were made to and from the street cars were made by Travis, the expenses imposed by reason of these trips were paid by Travis; all this extra service, which is the subject of this suit, was performed by Travis, the subcontractor. It was not claimed by Weighel, nor does his personal representative claim, that Weighel performed this extra service.

It is unfortunate that Travis did not sue in his own name, or that Weighel did not sue for the benefit of Travis. After the suit brought by Weighel had been pending in this court for over six years, it seems to have occurred to Travis that Weighel did not have a cause of action, and he therefore undertook to sue in his own name, but it was held that he was too late; that he was barred by the statute of limitations, and his suit had to be dismissed. Had he brought his suit in time, or if Weighel had sued for his benefit in the first place, it is difficult to perceive how he could have been defeated. As the matter stands, it clearly appears that Weighel has no interest in the subject matter of this suit; therefore his executor can not maintain it, and his petition must be dismissed.

Graham, Judge, DowNet, Judge, Booth, Judge, and Campbell, *Chief*Justice, concur.