#### EUGENE A. FREUND AND ALFRED F. ROEMMICH v. THE UNITED STATES.1

[No. 33855.

Decided December 13, 1920.]

*On the Proofs.*

*Contract, Post Office Department; screen mail wagon service.*— Where contractors enter into an agreement with the Government to carry the mails on a circuit service and mileage basis between the post office and all points where mails are to be received or delivered by said contractors for a four-year period, and it becomes known to’ the contractors and the Post Office Department officials before the- contract was executed that the post office would not be completed by the *16time the contract was to commence, and an order is served by the Post Office Department on the contractors the day before the contract was to begin to continue the trip service then in use between the old post office and railroad station» and other points, on a mileage basis, the service under said order is not additional service within the meaning of said contract for which no compensation is to be. made, but the contractors are entitled to recover on a mileage basis for the entire distance covered whether mail wagons are carrying mails or returning empty.

*The Reporter's*statement of the case:

*Mr. 'William R. Harr*for the plaintiffs. *Harr dc Bates*were on the briefs.

*Messrs. Joseph Stewart*and *J. Robert*Anderson, with whom was *Mr. Assistant Attorney General Frank Davis, jr.,*for the defendant.

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

I. Claimants are citizens of the United States and at all times hereinafter mentioned were members of a partnership known by the firm name of “Freund & Roemmich,” with offices in the city of St. Louis and State of Missouri, said partnership having been formed expressly for the purpose of engaging in the service of collecting and transporting the mail of the United States under the contract with the Government referred to herein.

II. The defendant’s Post Office Department having advertised in a newspaper published in the city of St. Louis, Mo., for bids for certain screen-wagon mail service in said city, the plaintiffs called on the postmaster of said city and were furnished a bulletin advertisement calling for bids for screen-wagon or automobile service in said city upon mail route No. 445004, a copy of which bulletin advertisement is attached to plaintiffs’ original petition herein marked “ Claimants’ Exhibit A.” It was stated therein that decision would be announced on or before March 21, 1911. The service contemplated thereby was a circuit service on a mileage basis over seven circuits, starting from the new post office, then being built but not completed, said service to *17commence July 1, 1911, and the bulletin stated that “Any additional information concerning the same can be obtained by calling upon the postmaster.”

III. Plaintiffs called several times on the postmaster and assistant postmaster for the purpose of obtaining further detailed information about the contemplated service, were furnished at one time a schedule giving the number and hours of the trips and the estimated mileage per day, and were advised that the new post office would not be completed by July 1, and therefore the contemplated service could not commence at that time. Plaintiffs also procured information as to the probable amount of mail to be handled in order to determine whether it could be carried in the required equipment, made tests as to the correctness of the stated mileage to be covered, and, after being fully advised as to the nature and the amount of the service, submitted, on or about March 10,1911, a bid for said service on a mileage basis.

IV. On March 21, 1911, plaintiffs were advised by a letter from the postmaster that all bids had been rejected and that he had been instructed to invite bids on routes numbered 1 to 7 known as routes 445,004 and 445,004 — A, to be submitted to the Second Assistant Postmaster General not later than 4.30 p. m., April 6, 1911, said letter also stating that “A copy of the request for bids is transmitted herewith,” and inclosed therewith was the following:

*18*Route No. 44500/i. (Mileage dasis)*— Regulation *screen-wagon service at St. Louis, Mo.*— Mail-station *service.*

“ The contractor for service on this route will be required to begin service on the first day of the contract term (July 1,1911), with not less than two No. 2 and four No. 3 wagons, or six motor wagons, each of a carrying capacity of not less than 1,500 pounds, and to retain this equipment for use in service on this route unless otherwise ordered by the department; but the department reserves the right to require the contractor to furnish at any time during the contract term such additional equipment as may be necessary for a prompt and efficient service.

“ Bond required with bid, $25,000.

“ Present annual pay for wagon service under existing contracts, routes No. 445004, $21,785, and No. 445007, $1.40. (See paragraph 15, Instructions to bidders.)

*19“(The above statement does not show the service as performed for any particular period, but shows the service that it is thought will be necessary at the' beginning of the contract term. The service that may be required between the points named will not be limited, however, to the number of trips named, if a greater number becomes necessary.)

“ Note. — It may be necessary to either increase or decrease the trips as shown in the foregoing statement, and to include service to and from other like points not named in said statement, or to discontinue service to and from or between points named. When additional service or increased trips become necessary for any reason, the facts must be reported to the department by the postmaster and authorization obtained from the Second Assistant Postmaster General before the same can be put into operation, except where additional trips become necessary in an emergency, when the postmaster may require the same of the contractor for such time as may be necessary, not exceeding seven days, and where regularly scheduled trips are not required for a period not exceeding seven days no deduction will be made from the contractor’s pay. The postmaster should immediately report such emergency or omitted service to the department. When decreases may be made the postmaster should report the facts to the department and an order will be issued by the Second Assistant Postmaster General decreasing the service accordingly. For any authorized change in the service other than emergency service or omitted service, above referred to, the pay of the contractor will be increased or decreased, as the case may be, at the rate per mile of travel as shown by the annual rate of the proposal of the accepted bidder and the annual miles of travel based on the frequency and distances shown in the above statement of service. So much of the ‘ Instructions to bidders ’ as is inconsistent with the foregoing shall not apply to the contract for service on this route.

“ The term ‘ trip ’ as applied to this route means a dispatch of mails by one wagon of any size specified in the advertisement, and such wagon may be of the largest size, if necessary.

“ If service on this route (445004) is let, the service advertised herein under route No. 445004-A will not be awarded.”

This bulletin called for the same service as that first issued, and was substantially the same in all respects, differing from it in the omission of the statement quoted in Finding II as to the obtaining of additional information from the postmaster and in the addition of the “ Note,” not found in the first bulletin.

*20A bulletin dated March 21, 1911, inviting proposals for screen-wagon mail service in the city of St: Louis, including therein instructions to bidders, form of proposal, contract, bond, etc., and also including the matter contained in the bulletin above referred to with reference to route No. 445004, is in the record, and findings are requested by defendant as to matter contained therein, but it is not shown that such bulletin was submitted to the plaintiffs.

Upon the receipt of the second bulletin plaintiffs had conferences with the postmaster and assistant postmaster at St. Louis, in which they suggested the impossibility of procuring required equipment by July 1, and in which they were told that the work contemplated could not begin at that time because the new post office would not then be completed and that the department would take care of the situation.

Plaintiffs thereupon, under date of April 4, 1911, transmitted to the Second Assistant Postmaster General the communication following, accompanied by the bid also following:

“ Dear Sir : We herewith submit our bids for contract automobile services to carry the mail on routes No. 445004 and 445004-A, being known as circuit No. 1 to 7, inclusive, for a total sum of twenty-one thousand five hundred sixty-three dollars and thirty-three cents ($21,563.33) per annum, being on a basis of sixty-seven thousand nine hundred and sixteen (6T,916) miles, at thirty-one and three-fourths cents ($.31f) per mile carried.

“We also agree to perform additional services on above routes on the same basis.

“ Respectfully,

“ EtjgeNe A.-FreuNd,

“ *1560 South Broad/way.*

“A. F. Roemmich,

“ *1937 Park Av”*

“ PROPOSAL.

“[Regulation screen-wagon service.]

“ City of St. Louis, Mo., Route No. 445004 — 445004 A, circuits *.#*1, 2, 3, 4, 5, 6, 7.

“ The undersigned^ Eugene A. Freund and Alfred F. Roem-mich, whose post-office address is 1560 So. Broadway, 1937 Park Ave., city of St. Louis, State of Missouri, proposes to carry the mails of the United States from July 1, 1911, to June 30, 1915, on above-numbered route, being the regula*21tion screen automobile wagon service in the city of St. Louis, State of Missouri, under the advertisement of the Postmaster General, dated October 1,1911, and subject to all the requirements and conditions contained therein, for the sum of twenty-one thousand five hundred sixty-three 33/100 dollars (21,563.33) per annum, on a basis of thirty-one and three-fourths (3l|) cents per mile; and if this proposal is accepted he will enter into contract, with sureties to be approved by the Postmaster General, within thirty days after the date of acceptance; and will give his personal supervision to the performance of the service and will reside on or contiguous to this route.

“ This proposal is made in my own interest and not as the agent or representative of another person or company, and 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.

“ Dated April 4th, 1910.

“Eugene A. Freund,

“Alfred F. Roemmich,

"Bidders.

“ $21,563.33, on a basis of 31f cents per mile.”

“[Oath required by section 245 of an act of Congress approved June 23,18/4, to be affixed to each bid for carrying the mail, and to be taken before an officer qualified to administer oaths.]

“I, Eugene A. Freund and Alfred F. Roemmich, of St. Louis, Mo., bidders for carrying the mail on the regulation screen-wagon route No. 445004-445004A, at the city of St. Louis, Mo., known as circuits 1 to 7, and we do swear that we have the ability, pecuniarily, to fulfill my obligations; that the bid is made in good faith and with the intention to enter into contract and perform the service in case my bid is accepted.

“Eugene A. Freund,

“A. F. Roemmich,

*“'Bidders.*

“ Sworn to and subscribed before me, a notary public for the city of St. Louis, this 4th day of April, A. I). 1911, and in testimony thereof I hereunto- subscribe my name and affix my official seal the day and year aforesaid.

“ Jul R. Wolee [l. s.] ,

“ *Notary*Public.”

Thereafter, on April 13, 1911, plaintiffs, for the purpose of correcting mileage and restating bid accordingly and in *22reply to a communication from the Post Office Department, transmitted thereto the following:

“ St. Louis, Mo., *Api. 13,1911.*

“ SecoNd Assistant- Postmaster General,

“ *'Washington, D. 0.*

*“*Replying to your letter 11th E. H. B. apply our bid to route number four forty-five ought ought four (445004) mileage basis at twenty-one thousand five hundred sixty-three dollars thirty-three cents ($21,563.33) per annum. Based on corrected mileage figures of sixty-eight thousand ninety-three and two-tenths, 68,093.20 miles per annum and thirty-one and sixty-six hundredths, 31.66 cents per mile. Our letter follows properly certified as requested.

“ Eugene A. Freund,

*“1560 So. Bdway.*

“Alfred F. Roemmich,

“ *1937 Parh Ave.*

[In reference bid automobile service route No. 445004. 11th.] Answering your letter

“ St. Louis, Mo., *April 13,1911.*

“ Joseph Stewart, Esq.,

“ *Second Assistant Postmaster General,*

“ *Washington, D. G.*

“Dear Sir: Answering your letter of the 11th inst. It was our intention and you may consider our bid to apply on route number 445004 (mileage basis) at a total cost of twenty-one thousand five hundred sixty-three dollars and thirty-three cents ($21,563.33) per annum, being on a basis of sixty-eight thousand ninety-three and two-tenths (68,093.2) miles per annum at thirty-one and 66 hundredths (31.66) plus cents per mile.

“ Please insert the above corrected mile rate in our bid instead of the rate given thereon in error, namely, 31.75 cents per mile, which rate we figured basing the annual mileage at 67,916 miles instead of 68,093.20 as you advised.

“ The mileage figures which we used first as a basis were handed to us by the superintendent, of deliveries and we inclose them herewith for your inspection.

“ We also inclose letter concurring our action by the American Fidelity Co.

“ Respectfully,

“Alered F. Roemmich,

“ *1937 Parh Ave.*

“ Eugene A. Freund,

*“1560 So.*Broadway.”

*23V. Under date of April 20, 1911, plaintiffs were notified of the acceptance of their bid and shortly thereafter a contract prepared in the Post Office Department was sent to the postmaster at St. Louis for execution by them. The notification of acceptance was as follows:

“ Gentlemen : The Postmaster General has accepted your proposal under the advertisement of March 21st, 1911, for carrying the mail from July 1, 1911, to June 30, 1915, on route No. 445004, being regulation automobile screen-wagon service, at St. Louis, Mo., at $21,563.33 per annum.

“ You are reminded that in your proposal for service on this route you stated that the proposal was 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.’

“ Your particular attention is called to the requirement that you must have On the route ready for use on the first day of the contract term, the full number of wagons and carts specified in the advertisement for this route; that this equipment must be new, or, if not new, be rebuilt when necessary, and repainted, and be substantially as good as new, and be built in accordance with the plans and specifications adopted by the department; that the horses must be adapted to the work and must conform to the specifications; and that the wagons, horses, and harness must be kept at all times in first-class condition, as required by the conditions imposed by the ‘ Instructions to Bidders ’ in the advertisement.

“ You are cautioned to have your equipment meet the requirements and to see that the service is performed in accordance with the terms of your contract.

“A copy of the advertisement and a set of the plans and specifications are inclosed herewith.

“ Contracts will be sent in due time to the postmaster at your place of residence, which must be properly executed and filed in the department within thirty days from this date.

“ Respectfully,

“ Joseph Stewakt,

*“Second Assistant Postmaster*General.”

Plaintiffs again had conference with the postmaster with reference to the requirement that service should commence on the 1st of July, were assured that the matter would be adjusted in due time, and were urged to sign the contract. *24On May 22, 1911, they signed the formal contract, which was as follows:

CONTRACT FOR MAIL SERVICE.

“ Regulation motor screen-wagon service in the city of St. Louis, Missouri. Route No. 445004. Annual rate of pay, $21,563.38.

“ Contractors’ addresses: Eugene A. Freund, 1560 South Broadway, St. Louis, Missouri; Alfred F. Roemmich, 1937 Park Avenue, St. Louis, Missouri.

“ This article of contract, made the 20th day of April, nineteen hundred and eleven, between the United States of America (acting in this behalf by the Postmaster General) and Eugene A. Freund and Alfred F. Roemmich, contractors, and Southern Surety Company, a corporation with general offices at St. Louis, Missouri, as their sureties:

“ Witnesseth, that whereas Eugene A. Freund and Alfred F. Roemmich have been accepted as contractors for transporting the mails on route 445004, being the regulation motor screen-wagon service at the city of St. Louis, Missouri, under bulletin advertisement issued by the Postmaster General on the 21st day of March, 1911, 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 twenty-one thousand five hundred sixty-three and thirty-three hundredths dollars ($21,563.33) per annum, for and during the term beginning the first day of July, 1911, and ending June 30,1915.

“ Now, therefore, the said contractors and their 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, rising therefor substantial, regulation motor 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, or substantially as good as 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, in*25clement 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 mail stations, railroad stations, and cars at such points and at such hours, under the direction 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.

“ 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 answerable and accountable in damages for the careful and faithful conduct of the person or persons who may be employed by said contractors and to whom the said contractors shall commit the care or 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 or transportation of said mails; and, further, that said contractor shall not commit the care or transportation of the mail to any person under eighteen years of age, or any person undergoing a sentence of imprisonment at hard labor imposed by a court having criminal jurisdiction, or to any person who has not satisfied the postmaster or his representative (subject to the approval of the department) that he has good moral character and ability to perform the service, has taken the oath prescribed by law, can read and write the English language, and has passed the required examination and furnished the necessary recommendations as to his qualifications and fitness.

“ 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 by any of them, or any of their agents, or be concerned in transmitting, commercial intelligence more rap*26idly 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 possession of the contractors, their sureties, or employees.

“ Seventh. That foreign mail 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, when requested so to do, railway post-office clerks, substitutes, or messengers authorized to accompany the mails on the driver’s seat of each wagon.

“ Tenth. To perform any and all new and 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 stations, or points, of exchange with electric or cable cars, named in the schedule of service for said route in said advertisement, and to and from other like points not named therein. Also to perform any and all additional service during- the contract term that may be caused by changes of site of said post offices, railroad stations, steamboat landing, mail stations, or points of exchange with electric or cable cars.

“Eleventh. It is further agreed that the.contractors or carrier shall not transport intoxicating liquors from one point to another on this route, while in the performance of mail service.

“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 contractors are to be paid by the United States at the rate per annum hereinbefore named; payments to be made monthly, and as soon after the close of each month as accounts can be adjusted and settledj 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 the said contractors and their 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, *27or points of exchange with cable or electric cars named in the schedule for service for said route, in said advertisement, establish service to and .from like offices, stations, landings, or points not named therein, and vary, increase, or decrease the trips thereto, and discontinue service between any of the post offices, railroad stations, steamboat landings, mail stations, or points of exchange with electric or cable cars, or between any of them: *Provided,*That for any increase in the service authorized by the Second Assistant Postmaster General, the pay of the contractors shall be increased or decreased, as the case may be, at the rate per mile of travel agreed to be paid for service under this contract, as shown by the annual rate of compensation and the annual miles of travel, based on the frequency and distances shown in the schedule of service for said route in said advertisement : *Provided*further, That where additional trips become necessary for the performance of the service herein provided for by reason of an emergency, the contractor shall perform such trips as the postmaster at St. Louis may require, for a period not exceeding seven days, without additional compensation.

“And it is further stipulated and agreed 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 total discontinuance of service the contractor shall be allowed one month’s extra pay at the rate of compensation stated at the time of the issuance of the order of discontinuance, as full indemnity.

“And it is further stipulated, and agreed that for a failure to deliver the mail not beyond the control of the contractors, 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 hereinbefore specified; for suffering the mail to be wet, injured, lost, or destroyed; or for any other delinquency or omission of duty under this contract; for all or any of which the contractors shall forfeit, and there may be withheld from their 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 Postmaster General may annul this contract for repeated failure or for failure to perform service according to contract; for violating the postal laws and regulations; for disobeying the instructions of the Post Office Department; for refusing to discharge a driver or any other person handling mail under the contract, when required by the department; for subletting the service without the consent of the Postmaster General, or *28for assigning or transferring the contract; for combining to prevent others from bidding for the performance of Postal Service; for transmitting out of the mail commercial intelligence or matter which should go by mail, contrary to the stipulations herein, or for transporting persons so engaged; for the failure of the contractors to give their personal supervision to the performance of the service, or to reside on or contiguous to the route; whenever either of the contractors 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 continued, 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 contractors and their sureties, under this contract; but such damages may, for the purpose of set-off or counterclaim, in the settlement of any claim of said contractors or their 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 contractors and their 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.

“ In witness whereof, the said Postmaster General has caused the seal of the Post Office Department to be hereto affixed, and has caused the same to be attested by the signature of the Second Assistant Postmaster General, in accordance with the act of Congress approved March 3, 1871 (sec. 3, 19 Stats., p. 335), and the said contractors and their sureties have hereunto set their hands and seals the day and year set opposite their names, respectively.

“ Signed, sealed, and delivered this 26th day of May, 1911, by the Second Assistant Postmaster General in the presence of—

“ By order of the Postmaster General:

“ JOHN W. Hollyday.

“Joseph Stewart,

*“Second Assistant Postmaster General.*

*29“ Signed this 22d day of May, 1911.

“Eugene A. Fbeund, [seal.]

“Aleeed F. Roemmich, [seal.]

“ *Contractors.*

“E. F. Maetin,

“ Emilie N. Oster,

“ *Witnesses to signatures of contractors.*

“ Signed this 22d day of May, 1911.

“ Southern Surety Company,

“ By J. H. Huckleberry, [seal.]

*Vice President.*

“Attest E. G. Davis, [seal,]

*Secretary.*

Said contract was transmitted to the Post Office Department May 23,1911, with the following letter:

“ May Twenty-third, 1911.

“ Hon. Jos. A. Stewart,

“ *Und Assistant Postmaster*General, Washington, *D. C.*

“ Dear Sir : Enclosed please find contracts covering route #445004, St. Louis, Mo., executed by us in duplicate.

“We find that while the total amount of dollars per an-num, namely, $21,563.33, for service, as advertised, is stated in the contract, the mileage, 68,093.2, also the rate, 31.66, is omitted, and as this contract is on the mileage basis, we think the mileage and the rate should be stated. Please give us your opinion on this matter.

“ Finding it to be necessary, we hereby make application for extension of time from July 1st, 1911, to such later date as the department may see fit to grant us. We are making this request after consulting the gentlemen connected with the department here.

“ Please send us a copy of the bulletin advertisement covering the above contract, if you have one.

“ Thanking you in advance, we are,.

“ Respectfully,

“A. F. Roemmich *&*E. Freund.”

On May 26,1911, the contract was executed by the Second Assistant Postmaster General, who, under date of May 31, 1911, wrote the plaintiffs as follows:

*30“ Post Oeeice Department,

“ SecoNd Assistant Postmaster General,

“ Washington, *May 31,1911.*

“ Messrs. Eugene A. Freund and A. F. Koemmich,

“ *1560 So. Broadway, St.*Louis, *Mo.*

“ Gentlemen : Beferring to your letter of the 23rd inst., with which you forwarded contract in duplicate for service on route 445004 at St. Louis, Mo., for the term beginning July 1 next, and to the application contained in the third paragraph of your letter for extension of time from July 1, 1911, to such later date as the department may see fit to grant you for the commencement of service, you are informed that your proposal was accepted and the contract entered into pursuant thereto with the specific stipulation that the service should begin with July 1, 1911. The department can not, therefore, grant your request to begin service thereunder at a later date, but you will be expected to at once make preparation to take up the service on the first day of the contract term.

“ The department is having prepared a statement of such service as it is thought will be in actual operation on Juty 1 next, and when it is completed and filed in this office a copy of the same will be sent you, in order that you may be more fully informed as to the service that may be required.

“ Very respectfully,

“Joseph Stewart,

“ *Second Assistant Postmaster*General.”

YI. After executing the contract plaintiffs conferred with the department with reference to the equipment for its performance, were furnished a color scheme, but directed to submit their own drawings of the proposed equipment for approval. They investigated as-to the required size, carrying capacity, speed, etc., examined equipment in use in another city, and were of the opinion, after such investigation, that the six motor vehicles mentioned in the bulletin would be sufficient for the service contemplated by the contract.

Plaintiffs also had a conference about June 15 to 20 with the Second Assistant Postmaster General in which they reported to him the information given them by the postmaster at St. Louis and relied upon by them to the effect that the contemplated work would not be ready for them July 1, and represented to him that the time was insufficient within which to procure the required equipment and also that that *31equipment would be insufficient for the performance of the work which it then appeared was going to be required of them. This conference was sought because of the notification that they would be required to commence work on July 1, and they believed that if so required the work they would be called on to do would be a continuance of the old service then being performed by another contractor, who had in use a large equipment consisting of 18 post-office wagons of different capacities.

They were informed that under the terms of the contract they would be required to commence work on July 1, and that a schedule of the work to be required would be forwarded to them. On June 30 they received from the postmaster at St. Louis a copy of an order restating the service on route No. 445004 as follows:

“ Post Office Department,

*“*Second Assistant Postmaster General,

“ *Washington, June 30,1911.*

“ Postmaster, *St. Louis, Mo.*

“ Sir : An order has been issued to-day on route No. 445004, screen-wagon service at St. Louis, Mo., restating the service from July 1,1911, making total annual travel 57,679.60 miles and pay $18,265.61 per annum, being pro rata of original contract price.

*32

“ Respectfully,

“(Signed) Joseph Stewart,

“ *Second Assistant Postmaster General*

And they were also furnished by the postmaster with detailed schedule of the service required, in which was set out the time of all réquired trips between the post office and the Union Depot and other stations, the time of trains to be met. for the transmission and receipt of mails, etc.

Plaintiffs protested to the Second Assistant Postmaster General, to the postmaster at St. Louis, and to a Mr. Porter, a representative of the Post Office Department then at St. Louis, against being required to perform this service on the ground that it was an entirely different service from that contemplated by their contract and not within its requirements.

At a conference on June 30, at which the plaintiffs, the postmaster and his assistant, Mr. Porter, and the then contractor, Mr. Lewis, were present, plaintiffs appealed to Mr. Porter for relief from the order, stating that they would be ruined financially. Mr. Porter requested Mr. Lewis to continue the service under his contract for six months longer, which Lewis refused to do, and he (Porter) informed plaintiffs that it was beyond his province to do anything in the matter, that his purpose was to see that the service com*33menced on July 1, and that if they did not do so the contract would be readvertised and they would be sued on their bond. The authority of Mr. Porter in the matter is not shown.

Plaintiffs being without required equipment they were permitted to carry on the work with the screen wagons used by the former contractor, and they arranged with him to carry on the service and protect it with his equipment from day to day, at a price stipulated between them, and through him, temporarily, and by themselves they performed the restated service from July 1, 1911, to midnight of October 26, 1912.

VII. At the time the advertisement for the bulletin herein-before mentioned was issued, the defendant had under construction a new post-office building at a new site about 13 blocks distant from the old, and the service for the new contract term to begin July 1 was therefore stated on the basis of circuit trips from the new post office, by various postal stations, and returning to the place of beginning.

Before plaintiffs submitted their bid it was known to them and to the postmaster at St. Louis that the new post office would not be ready for occupancy by July 1. Just when the Post Office Department knew that the new post office would not then be ready for occupancy is not known, but it does appear that at or near the time plaintiffs’ contract was executed in. the Post Office Department there was being prepared in the department a statement of the service which it was thought would be in actual operation on July 1. The building was not ready for occupancy by the post office until October 26, 1912.

The service required of plaintiffs by the order of June 30, 1911, was, in fact, a continuation of the service then being performed by the preceding contractor and was necessary in the transportation of mails in the city of St. Louis.

The service bid upon was a circuit service on seven circuits, on a mileage basis, each circuit beginning and ending at the new post office and for which the contractor was paid for every mile traveled regardless of the quantity of mail carried or whether for any part of the distance no mail was carried. The restated service was a trip service for which *34payment was made on a mileage basis when mail was carried, but no payment was made for a return trip if mail was not carried or for distance traveled by empty vehicles in going to a point from which mail was to be moved.

The service bid upon involved the handling of the mails for a small area and was a comparatively light service. The restated service required the hauling of incoming and outgoing mails for the entire city and involved handling several times the weight of mail. The service bid on required 6 automobiles. The restated service required 18 wagons of different capacity exceeding several times in aggregate capacity that required for the bid on service. The mileage of each wagon, when carrying mail, was allowed and paid for. The larger bulk of mail required proportionately more time in loading and unloading.

The bid upon service, with the exception of one early trip on each of these circuits was all to be performed within 12 hours from approximately 8 a. m. to 8 p. m. The restated service required trips during practically every hour of the twenty-four.

VIII. Under date of October 18,1912, effective October 28, 1912, the service required on route No. 445004 was restated on the seven-circuit basis beginning and ending at the new post office as contemplated by the bulletin upon which plaintiffs bid, and that service wras performed by plaintiffs during the remainder of their contract term.

IX. The cost to the plaintiffs for the performance of the service required during the 16 months beginning July 1, 1911, was $43,726.89. They were paid by the defendant for such service $24,289.62.

The service was performed for some months entirely by the former contractor’s equipment under the supervision of one of the plaintiffs for which they paid him each month. During November, 1911, they began to receive their own automobile equipment and installed the same and retired from service such of the former contractor’s equipment as could be dispensed with, reducing the payments to him, but some of his equipment was used during the entire term covered by this service.

*35most July, August, September, and October plaintiffs paid Lewis, the former contractor, for this service $2,325 per month, and the service was worth that amount. Thereafter, in reduced monthly amount, as stated, they paid him $4,'708.12, and the service rendered was worth that amount.

The plaintiffs performed the service after October, 1912, at a profit of 42 per cent on its cost.

X. For the service rendered by the plaintiffs they were paid by the defendant on a mileage basis each month, based on the mileage traveled when carrying mails, and they received such payments without protest.

XI. The mileage necessarily traveled by the plaintiffs in the performance of the restated service for the 16 months beginning July 1, 1911, over which they did not in fact carry any mail, being mileage traveled empty on the return trip after delivering mail or mileage traveled empty in going to receive mail, amounted to 23,204.89 miles, which if paid for at the mileage rate applied to the service paid for would amount to $7,346.66.

1

Appealed,

Downey, Judge,

delivered the opinion of the court:

Plaintiffs sue to recover for services rendered in carrying the mails in the city of St. Louis for a period of about sixteen months beginning July 1, 1911, a part of the contract period hereinafter referred to. It was the service commonly called screen-wagon mail service. For the purposes of this opinion it is not necessary to repeat in detail the facts, as they are set out in the findings. There are, in fact, many things set out in the findings which, as we view the case, are not material and therefore not for our consideration, but they are set out because requested by plaintiffs and because they do bear upon plaintiff’s theory of the case.

After bulletin advertisement and bid by the plaintiffs they were awarded and entered into a contract for the performance of mail service in the city of St. Louis for a period of four years begining July 1, 1911. There was then building in the city of St. Louis a new post office not yet completed. It is apparent if it had been ready for service by July 1, 1911, there would have been no trouble as an outgrowth of *36this contract, for the service contemplated was a circuit service beginning and ending at the new post office, and when the new post office was finally completed ready for occupancy and the service originally contemplated by the plaintiffs was entered upon, it was performed apparently to the satisfaction of both parties and without controversy as to compensation. Whether it was known to the Post Office Department when the schedule of service operative from and to the new post office, and included in the bulletin, and bid upon, was prepared, that the new post office would not then be ready for occupancy, does not appear. It does appear that before bidding and before entering into the contract the plaintiffs knew the post office would not be completed then, the postmaster at St. Louis well knew that it would not be completed then and for some time, not definitely shown, antecedent to the commencement of the proposed four-year term, the Post Office Department knew that the new building would not be ready for occupancy at that time. However that may be, the contract was entered into and it required the plaintiffs to begin service July 1, 1911.

A screen-wagon mail service was then in operation in the city of St. Louis, handling the mails between various railroad stations and the post office. It was a service being rendered and paid for upon a basis theretofore provided in the Post Office Department with reference to such matters and from which the new service contemplated by plaintiffs’ contract was a departure in that this new service contemplated payment upon a mileage basis for the miles traveled in handling the mails and, in this particular instance, contemplated a circuit service, beginning and ending as to each circuit at the new post office, and involving compensation for all miles traveled by the contractors’ vehicles.

Shortly before the beginning of the contract period, it being apparent that the service contemplated could not then be rendered, there were conferences with reference to the matter as between the postmaster at St. Louis and these plaintiffs, the postmaster and his assistant at St. Louis and these plaintiffs, and between these plaintiffs and the Second Assistant Postmaster General, having charge of this particular class of service. As between the plaintiffs and the *37postmaster and his assistant at St. Louis, it appears that the plaintiffs were urged to submit their bid and to enter into the contract upon the representation that even though thereby they were required to commence service on July 1 the department would take care of the matter when the time came. Whether plaintiffs had any right to rely in any degree upon these representations made by the postmaster and his assistant at St. Louis is not necessary for our determination. The Second Assistant Postmaster General informed the plaintiffs after they had submitted their bid, and again after having entered into the contract, that they would be expected to commence service on the 1st of July, as provided in their bid and contract, and that a statement as to the service required would in due time be furnished them.

Late in June they were furnished by the postmaster at St. Louis with an order of the Post Office Department restating the service required on the first day of July, 1911, and thereafter until further order. The restated service was a continuation of the service then being performed by another contractor and was in many respects radically different from the service contemplated by the plaintiffs’ contract, although in restating the service it appears that compensation was provided for on a mileage basis pro rated to the contract.

The plaintiffs contend that the restated service required of them and upon the performance of which they entéred under protest was not the service contemplated by- their contract and that it was not a service within the contemplation of any provision in the contract, and that for the performance of such service they are entitled to be paid under an implied contract and upon a *quantum meruit*basis. The defendant contends that the service was an additional service which the Postmaster General had a right to require of the plaintiffs under a provision of their contract set out in the findings or that, if it be held that it was not such a service and therefore not performed under the contract, it was a service performed by the plaintiffs in response to the order of date of June 30,1911, calling upon plaintiffs to render the service and stating the compensation to be paid therefor, and hence *38a service to be compensated for on the stated basis and not otherwise.

In view of the widely different character of the service required from that contemplated by the contract, we may doubt whether the service was such new and additional service as might be required under the contract, but we do not find it necessary for our purposes to determine the question. When we reach the question of the basis of compensation we may conclude that it is not material whether that basis is found in the contract or in the order of June 30,1911.

The plaintiffs’ theory clearly is that the service required and performed, not being within the purview of the contract, was a service which the plaintiffs were not thereby required to perform. This theory must be adopted in the determination of the case; and if it be adopted as contended for by plaintiffs, it must necessarily follow that the plaintiffs, as to the performance of the restated service, were free agents and might perform or not, as they saw fit. There could be no obligation upon the part of the plaintiffs to perform such a service for the Post Office Department unless it were a contract obligation. The situation, then, seems simply to be that the Post Office Department, by its order of June 30, 1911, requested or assumed to require of the plaintiffs the performance of a stipulated service in the carrying of the mails which they were not bound to render and stated in connection therewith the compensation which would be paid for the service. It is well settled that the performance of a service for the United States under such circumstances is to be compensated for upon the basis proposed and not otherwise. The principle is settled in many of the cases, among which we cite the following: *A., T. & S. F. Ry. Co.*v. *United*States, 225 U. S., 640; *C., M. & St. P. Ry. Co.*v. *United*States, 198 U. S., 385; *Eastern R. R. Co.*v. *United*States, 129 U. S., 391; *Atlantic Coast Line*v. *United States,*53 C. Cls., 638, affirmed 251 U. S., 546; *K. C., M. & O. Ry. Co.*v. *United*States, 53 C. Cls., 258, and cases cited, affirmed 251 U. S., 326; *N. Y., N. H. & H. R. R. Co.*v. *United*States, 53 C. Cls., 222, affirmed 251 U. S., 123.

In determining the compensation to be awarded the plaintiffs under this order some facts are necessary for con*39sideration. As already suggested, the service contemplated by plaintiffs’ contract was upon a new basis adopted by the Post Office Department, viz, compensation upon a mileage basis, and in this case compensation upon such a basis as that the contractors should be paid for all miles necessarily traveled in the performance of the service. The restated service, which was in fact a continuation of the old service, was not upon a circuit basis, but involved trips back and forth between the post office and railroad stations and other points where mail was to be delivered and received. It is conceded by the defendant that the plaintiffs were entitled to compensation for this service upon a mileage basis, but the defendant contends that the compensation is to be limited to compensation for the miles traveled when actually carrying mail. In making a trip, for example, from the post office to a railroad station carrying mail it happened much of the time that the same vehicle in returning from the station to the post office carried incoming mail, and in such instances, the plaintiffs being allowed for all mileage when carrying mail, compensation was actually paid for a round trip. But in some instances it was necessary for the vehicles performing a required trip from the post office to the railroad station carrying mail to return, for the purposes of the service, empty, and in such cases the return trip when not carrying mail was not paid for.

Plaintiff’s theory of the case in this view of it is that since it performed a given number of miles of service in the carrying of mails for which they were compensated they also performed an equal number of miles of necessary travel when they were not carrying mails, because of the fact that the service was a trip and not a circuit service. But the facts already cited are sufficient answer to this contention. It is to be admitted that it is difficult to determine how many miles were necessarily traveled in the performance of this service when mails were not carried and for which compensation was not paid, but the findings have solved the question as accurately as the record justifies, and upon that basis we have concluded that the plaintiffs are entitled to recover. It may be added upon the question of compensation that it seems to us clear that the compen*40sation provided for in the order of June 30, 1911, was derived from and intended to be on the basis of the plaintiffs’ contract and that contract did not contemplate any dead mileage.

Our conclusion is that the plaintiffs are entitled to recover for all mileage necessarily traveled in the performance of the service required by the order of June 30, 1911, and not paid for, and they are accordingly awarded judgment in the sum of $7,346.66.

'Graham, *Judge;*Hat, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.