#### JOHN J. HOPKINS v. THE UNITED STATES

[No. D-344.

Decided February 1, 1926]

*On the Proofs*

*Mail pay; additional service.*— Where a contract with the Post Office Department for screen-wagon service provides that the contractor shall perform, “ without additional compensation, any and all additional service that the Postmaster General may *563order,” and by reason of the establishment .of a new railway-post office the contractor is required to and performs increased service between two railroad stations in the same city, he can not recover additional compensation on account of said increase in service.

*The Reporter's*statement of tbe case:

*Mr. Sidney F. Taliaferro*for the plaintiff. *Mr. Thomas P. Littlepage*was on the briefs.

*Mr. Ralph 0. Williamson,*with whom was *Mr. Assistant ..Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff, John J. Hopkins, is a citizen of the United States, and a resident of the city of Syracuse, State ■of New York. .

II. The plaintiff entered into a contract with the defendant on, to wit, the 2d day of May, 1921 (copy of which contract has been filed herein as plaintiff’s exhibit), as a contractor for a screen-wagon service for the United States Post Office Department at Syracuse, N. Y., on route designated by the Post Office Department and known as No. 407011-JB. The said contract was to cover services for and •during the term beginning on the 1st day of July, 1921, and ending on the 30th day of June, 1925, at and for the sum, as to screen-wagon service thereunder, of $24,409.04 per annum. The said contract was entered into following and in pursuance of a formal advertisement issued by the Postmaster General of the United States, on December 22, 1920 (copy .filed herein as plaintiff’s exhibit).

“ Supplemental instructions ” to bidders is a part of said .advertisement and contains the following provisions, viz:

“ The contractor for the service of carrying the mails on .any route under this advertisement will be required to perform without additional compensation any and all additional service that may be necessary from July 1, 1921, or .at any time thereafter 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 terminal railway post offices, or points of exchange with «electric or cable cars named in the statement of service for ..such route in this advertisement ” (p. 114, par. 58).

*564Also the following:

“ The statements of probable additional service that may be necessary on the routes under this advertisement are given so that bidders may be as fully advised as possible of the amount of service likely to be required. Such statements will not, however, limit the liability of the contractors to perform, without additional compensation, all service of the kind indicated in sections 58 and 59 that become necessary ” (p. 115, par. 60).

Also the following:

“The contractor for service will be required to carry all mail offered, including parcel-post matter ” (p. 115, part par. 64).

Also the following:

“ The foregoing statements on some routes show approximately the service as performed during the week named. On, other routes the service shown is that which it is believed will probably be required of the contractor at the beginning of the contract term. Bidders, however, must personally acquaint themselves with the amount and character of the service that will be- required during the contract term beginning July 1, 1921” (p. 114, par. 53).

The said contract was in language and terms as set out in plaintiff’s exhibit hereinbefore referred to, and contained, among others, the following provision:

“ To carry said mail in a safe and secure manner in the regulation screen-wagon service, using therefor substantial regulation 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; and to furnish and deliver for use in the city delivery and collection service such number of acceptable wagons as may be ordered by the postmaster,, approved by the Postmaster General, of the kind more fully described 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 inclement weather or other injury; the regulation screen wagon to give complete protection to the mails from depredation and all vehicles to be kept thoroughly painted, cleaned, and in good *565condition at all times and subject in all respects to the approval of the Postmaster General.” (First pg. 1, contract.)

Also the following:

“ To take the mail in the performance of regulation screen-wagon service from and deliver it into the post offices, terminal railway post offices, railroad stations, and mail stations, electric and cable cars, and cars at such points and at'such hours, under the directions of the postmaster at said city, approved by the Postmaster General, as will secure dispatches and connections and facilitate distribution, and at the contractor’s expense for tolls and ferriage; **** (Second pg. 1, contract.)

Also the following:

“ To furnish the number of regulation screen 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 regulation screen-wagon 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.” (Third pg. 2, contract.)

Also the following:

“ To perform, in the regulation screen-wagon service, without additional compensation, any and all additional service that the Postmaster General may order during the contract term, between post offices, between the post office and railroad stations, between the post office and terminal railway post offices, between the post office and steamboat land-, ings, between the post office and mail stations, between the post office and points of exchange with electric or cable cars, and between the several post offices, railroad stations, terminal post offices, 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. Also to perform, without additional compensation, any and all additional regulation screen-wagon service during the contract term that may be caused by changes of site of said post offices, railroad stations, terminal railway post offices, steamboat landings, mail stations, or points of exchange with electric or cable cars; and to and from any new railroad station within the city used by a company named in the schedule of service, and also such mail messenger service as may be necessary between the post office and a new railroad using *566the depot of a railroad named in the schedule of service, and such transfer and mail station service as may be necessary to and from such railroad; provided, that in the case of a mail station the increase in distance traveled by reason of such change in site does not exceed one-quarter of a mile per trip each way; the discontinuance of a mail station and the establishment of another in its stead not involving an increase in travel of more than one-quarter of a mile each way per trip to be regarded as a change of - site, and no additional pay to be allowed for the increased service caused by such change.” (Tenth pg. 2, contract.)

Also the following:

“ It is herebjr stipulated and agreed by said contractor and his sureties that the Postmaster General may change the schedule, vary, increase or decrease the trips on this route, or extend the trips to any new location of the post offices, railroad stations, terminal railway post offices, steamboat landings,' mail stations, or points of exchange with electric or cable cars named in the schedule of regulation screen-wagon service for said route in said advertisement, without change of pay; * * * ” (pg. 2, contract).

The plaintiff entered upon the performance of the said contract and fully performed and carried out in all particulars the obligations placed upon, him thereunder, from the 1st claji- of July, 1921, to the date of the filing of the petition herein, May 19, 1924.

III. As one of the items of service to be performed, specified in the aforesaid advertisement, plaintiff’s proposal and the contract thereunder, referred to in Finding II ■herein, the contractor was required to transport mail matter in both directions between the New York Central Railroad Company and the Delaware, Lackawanna & Western Railroad Company’s stations in the city of Syracuse, N. Y. The formal advertisement included a “ statement of service as performed for the week ending July 10, 1920,” and included a total of 56 trips, with a total of 14 miles, between the railroad stations referred to. The formal advertisement also included a statement of service as performed for the week ending July 10, 1920, of 1,426 additional trips, both long and short trips, between various points in the city of Syracuse, N. Y., with a total of 411.30 miles. The said advertisement was based upon the usual volume of mail trans*567ported, including that transported by screen-wagon service between the two railroad stations referred to. The system of routing the mails at Syracuse, N. Y., was at that time established and generally known, not only to the officials of the United States Post Office Department, but also to the plaintiff herein, who was then performing the same service under a contract with the United States as screen-wagon contractor at that place for the term July 1, 1917, to June 30,1921. From July 1, 1921, to August 16, 1921, the volume of mail transported by plaintiff under his contract with the United States was normal, and the number of wagon trips necessary to be made weekly to transport the mails was substantially the same as that specified in advertisement hereinbefore referred to and covering the term July 1, 1921, to June 30, 1925.

Notice was first received by the plaintiff on or about August 16, 1921, of intention upon the part of the Government of establishing the Binghamton & Philadelphia Railway Post Office, hereinafter referred to, and service so required of the plaintiff effective On that date was performed accordingly.

On August 16,1921, the defendant, acting by and through its duly authorized agents and servants in the United States Post Office Department and Railway Postal Service in the regular conduct of the postal service, made a change in the routing of mails through Syracuse, N. Y., established a new railway post office line known as the Binghamton & Philadelphia Railway Post Office for the purpose of effecting a substantial economy in the time required for the transportation of mails between northern and southern points. The effect of the change of routing was that mail which had previously been routed via New York City, which mail had passed through Syracuse upon mail cars and required no handling at Syracuse, was not sent to New York City, but was sent from northern and southern points 0direct to Syracuse, N. Y., and there transported between railroad stations by screen-wagon service. The plaintiff was, by the defendant, required to and has, from August 16, 1921, to the date of the filing of the petition herein, May-19,1924, transported *568an increased volume of mail between the aforesaid stations, by reason of the establishment of the said Binghamton' & Philadelphia Railway Post Office, although such increased .service was not anticipated, expected, or contemplated by the plaintiff and( was in excess of any previous volume of mail transported between the two railroad stations named. The number of trips per week required to be made by the pdaintiff, between the New York Central Railroad Company station and the Delaware, Lackawanna & Western Railroad station, as aforesaid, since August 16, 1921, has been 117, in place of 56 prior thereto. By reason of the said increased volume of mail to be transported between the two said railroad stations and which has been transported by the plaintiff, it was necessary for him to purchase an additional large-size wagon, additional horses, and employ additional help, beyond that necessary to perform the services required of him at the beginning of the contract term, one and one-half months prior to the establishment of the Binghamton *&*Philadelphia Railway Post Office on August 16, 1921, and plaintiff thus found it necessary to increase and did increase his total equipment by approximately one-sixth in order to transport the increased volume between the two railroad stations as aforesaid, and the total mileage necessary to be performed under the contract was increased approximately 23 miles per week.

IY. Almost immediately after August 16, 1921, the plaintiff verbally protested and complained to the postmaster at .'Syracuse, N. Y., against being required to transport the increased volume of mail without additional compensation. Thereafter plaintiff made further protests to the postmaster at Syracuse, N. Y., to superintendent at New York in charge •of railroad mail service at Syracuse, and finally to the representatives of the Post Office Department at Washington, D. C., on October 16, 1923, with reference to his situation; protested against the increased service imposed upon him without additional compensation and requested that he be awarded additional compensation. The matter of paying the plaintiff additional compensation was referred by the Post Office Department to the Comptroller General of the United States, and that officer, under date of February 21, 1924. *569rendered, a decision adverse to the claims of the plaintiff, and thereafter the Post Office Department declined and refused to compensate the plaintiff for the service performed by him by reason of the establishment of the new Bing-hamton & Philadelphia Railway Post Office. Plaintiff was under bond in the sum of $27,000.00, conditioned upon the performance of the aforesaid contract, and being unable to personally differentiate or make a division as between mails hauled by him because of the establishment of the new Bing-hamton & Philadelphia Railway Post Office and the mails otherwise hauled by him, was in a position where he had no reasonable choice as to his conduct and was compelled to transport between the two said railroad stations all of the mails given him to be transported or incur the risk of becoming involved in a heavy penalty for failure to perform his contract.

If the plaintiff is entitled as a matter of law to recover from the defendant, then the fair reasonable compensation for the increased service performed by plaintiff is the sum of $55.00 per week. The period from August 16, 1921, to October 15, 1923, both inclusive, is 113 weeks, and at the rate of $55.00 per week amounts to the sum of $6,215.00. The period from October 16, 1923, to May 19, 1924, is 31 weeks, and at the rate of $55.00 per week amounts to the sum of $1,705.00.

The court decided that plaintiff was not entitled to recover.

MEMORANDUM BT THE COURT

The plaintiff, who was a screen-wagon mail contractor in the city of Syracuse, N. Y., for the four-year period beginning July 1, 1921, sues for additional compensation for the carrying of an increased quantity of mail between the stations of the New York Central and the Delaware, Lacka-wanna &I Western Railroads, a distance of a quarter of a mile, for a period beginning August 16, 1921.

It is not questioned that the transportation of mails between these two points was a part of the service required by his contract. The claim arises because, beginning August *57016, 1921, the Post Office department established a new railway post office and rerouted mails so as to materially increase the quantity of mail to be transported between these two stations, that service, however, being only a portion of the service required under his contract.

The establishing of this new railway- post office and the rerouting of mails so as to require a transfer at Syracuse of an additional quantity of mail was but one of those changes which the Post Office Department is frequently making to expedite the transportation of the mails and to cover which there were provisions in all contracts such as those found in the contract of the plaintiff and incorporated in the stipulation of the parties, filed herein, and made the findings of the court.

These provisions so plainly cover the additional service sued for herein as to justify the assumption that this claim would not have been made but for the *Freund*case, 260 TJ. S. 60, on which plaintiff relies.

That case and this are so widely apart that the one can not be regarded as sustaining the claim in the other. In the *Frewui ease*the failure to complete the new post office in St. Louis necessitated a substituted service widely different from that contemplated, as will clearly appear from a reading of the opinion in which it is referred to as a “ substituted ” service, “ an entirely new task,” etc., and in which the findings of this court are quoted from at length to show how widely different in character the substituted service was from that contemplated. No such conditions existed in this case. There was admittedly no change in the character of the service but simply an increase in the quantity of mail moved between two points between which mails were required by the contract to be transported.

Attention should be called to the fact that while it is said that verbal complaints were made almost immediately to the postmaster at Syracuse and afterwards to the superintendent of Railway Mail Service at New York, there was no protest made to the Post' Office Department until October 16, 1923, more than two years after the change was made imposing the additional burden.