#### TOLEDO, ST. LOUIS & WESTERN RAILROAD COMPANY v. THE UNITED STATES.

[No. 31146.

Decided December 1, 1919.]

*On the Proofs.*

*Mail messenger service; mistake of fact*— Where a railroad company was notified by the Post Office Department by letter to provide mail messenger service between a railroad station and a post office, the letter stating that the distance between said points “ is not over 80 rods,” and it was subsequently found that the distance along the way open to public travel was over 80 rods, the railroad company is entitled to reimbursement for the reasonable value of the service furnished.

*The Reporter's*statement of the case:

*Mr. Benjamin Carter*for the plaintiff.

*Mr. J. Robert*Anderson, with whom was *Mr. Assistant Attorney General FranJe*Davis, *jr.,*for the defendants. *Mr. Joseph Stewart*was on the briefs.

No mutual or alleged mistake existed in respect of the location of the plaintiff’s railroad station, the post office, the route or the distance actually traveled by plaintiff’s mail messenger between the station and the post office at Warren, Ind., from February 1, 1905, to the time when said route *41was changed and the distance increased to more than 80 rods in the fall of 1909. The distance prior to the change was 1,305 feet, after the change 1,410 feet, and in respect thereto there was no such mistake which had or would have the effect of avoiding what was knowingly done or creating a new and different obligation from that assumed by the parties. *Journal ds Tribune Go.*v. *United*States, 53 C. Cls., 612; *Whitsell case,*34 C. Cls., 5; *Evansville dk Indianapolis R. R. Go.*v. *United States,*32 C. Cls., 555.

The service sued for was voluntarily performed and there was no objection thereto until about September 20,1909, and during all the time prior thereto, and from February 1, 1905, the plaintiff accepted settlements from time to time without objection or protest and is concluded thereby. *United States*v. Garlinger, 169 U. S., 316; *Baltimore & Ohio R. R. Go.*v. *United*States, 52 C. Cls., 468.

During all the time covered by the claim in question the plaintiff was not. authorized to render messenger service in excess of 80 rods and can not now recover for an unauthorized service. 17 Comp. Dec., 1005.

Where a mail contractor performs service extra to, or outside of, the contract without protest he can not thereafter recover additional pay for the reason that such service is deemed to have been voluntary. The contractor can not gainsay it. *Whitsell*case, *supra.*The decision confirmed the practice, subsequently followed.

Where a mail contractor performs service which he might have declined or refused to perform or which he could not have been compelled to render, performance waives all compensation beyond that allowed by the Postmaster General.

The case of *New York, New Haven & Hartford R. R. Go.*v. *United*States, 53 C. Cls., 222, affirmed 251 U. S., 123, was one wherein the plaintiff alleged that increased burdens were put upon it by the Post Office Department during- the performance of mail service. It received its regular mail pay. however, as allowed by the department. The court said:

“And as appellant voluntarily accepted and performed the •service with knowledge of what the United States intended •to pay,'it.can not now claim an implied contract for a greater sum.”

*42The decision last cited is in harmony with that of the *Delaware, Lackawanna & Western R. R. Go.*v. *United States,*51 C. Cls., 426, affirmed 249 U. S., 385, in which it was held that if the compensation awarded by the Post Office Department was not satisfactory to the company, it was a free agent and could have declined the service. By performance it can not effect a new or different obligation.

This case is not unlike that of the *Grand Trunk Western Railway Co.*v. *United States,*which was dismissed, 50 C. Cls., 421, where the railway mail carrier transported mail beyond a terminal station, Port Huron, for several years under successive authorizations to carry the mail to the terminal point. Subsequently, and during the service, the company notified the department that it had made an investigation and found that it was carrying the mail over an unauthorized distance of 3.37 miles. The claim was verified by the department and found to be correct, whereupon the route there in question was extended to include the greater distance. The plaintiff then sued for the service it had been performing over the 3.37 miles. This court in that case set aside a judgment for plaintiff theretofore rendered representing the value of the service and dismissed the petition.

The *Railway Mail Service cases,*13 C. Cls., 199, were brought to recover additional pay for carrying mail over the route of another company. It was there held that no recovery could be sustained for any service before protest was lodged with the department — affirmed on appeal, 103 U. S., 703, 705. The court said:

“ For what it lost (the company) by its neglect in making claim on the settlements when receiving payment, it must submit to loss.”

See also *Pittsbwg, Cincinnati <& St. Louis R. R. Go.*v. *United*States, 13 C. Cls. 314; *Evansville c& Indianapolis R. R. Co.*v. *United States,*32 C. Cls. 555.

Campbell, *Chief Justice,*

reviewing the facts found to be established, delivered the opinion of the court:

The plaintiff sues to recover the value of service rendered diming several years in delivering the mails to and from the *43railroad station, and post office at Warren, Ind. This was an intermediate station, on a regularly established postal route, where the distance between the station and post office was more than 80 rods. The “ distance circular ” sent by the department to the plaintiff and the regulations provided among other things:

> “ The department will provide for the carriage of mails to and from intermediate post offices and postal stations located more than 80 rods from the nearest railroad station; and also to and from intermediate post offices and postal stations located 80 rods or less from the railroad station when the railroad company has no agent or other representative employed at such station.”

The post office at Warren had been for some years more than 80 rods from the railroad station and the handling of the mails at that point had been provided for by the department, but there was a change in its location in the early part of 1905 which put it slightly more than 80 rods from the station, unless measured by a route which is not shown to have been open to public travel. The question as to a probable change in transportation was brought to the attention of the Post Office Department by a letter, dated January 4, 1905, in which the person who had been carrying the mails for the department stated that the new location was within the 80-rod limit. This letter was referred to' the postmaster at Warren, who reported that the new post office would be within 80 rods of the railroad station.

Thereupon, on January 20, 1905, the Second Assistant Postmaster General notified the plaintiff’s general manager that an order had been issued discontinuing “ the mail messenger service ” between the trains and post office at Warren from January 81, 1905, and stated:

> “This order is based upon a report that the distance between the post office and the station **** * is not over 80 rods.

> “ If this report be correct, it is the duty of your company to provide for the carriage of the mails between the post office and your trains, and it will be expected to provide for such service from the above-mentioned date.”

Without further question the plaintiff provided for transferring the mails until September, 1909, when an accurate *44measurement was made, which determined the distance between the station and post office at Warren to be over 80 rods. Taking the distance from the rear of the post office, and over some private property, there is no question that the route was under 80 rods; nor is there any doubt that the correct measurement along the way open to the public made the distance slightly more than 80 rods. The Post Office Department’s information, upon which it acted, was that the distance was under 80 rods, and if that was correct, the obligation was upon the railroad. .

The effect of the letter discontinuing the mail messenger service was to authorize the railroad to carry the mail between the station and post office, though predicated upon a measurement which afterwards developed to be incorrect. The department notified the plaintiff, in substance, that the mail messenger service was discontinued because the station was not more than 80 rods from the post office. It is true that in placing the obligation upon the railroad to carry the mails the department’s letter stated that that obligation would be upon the railroad if the “ report ” was correct as to the distance, but it seems clear that the department contemplated that the plaintiff could act upon the department’s information, at least until it should be found to be incorrect. That information was sufficient in the department’s judgment to authorize a discontinuance of the “ mail messenger service,” and the letter apprised the plaintiff that it would be expected to provide for such service. In other words, the court is of opinion that there was a sufficient “ authorization ” by the department that the company carry the mail between said points, though based upon a mistake of fact as to the distance. The department readily corrected the matter when the correct measurements were made, and the service having been authorized we think the plaintiff should be paid the reasonable value thereof, the amount of which is shown by the findings.

Judgment will be rendered for the plaintiff company in the sum of $570.27.

Graham, Judge, Hay, Judge, DowNey, *Judge,*and Booth, Judge, concur.