#### ALVORD’S CASE. Elijah S. Alvord *v.*The United States.

*On the Proofs.*

*A mail-transportation oontraot requires the contractor to carry the mail by four-horse coaches “*in a "boot under the driver’s seat.” ' *Subsequently he offers*« *to improve the service for*$14,000 *additional per annwm. The Postmaster-General accepts the offer. Subsequently the railroad-route established by Congress for the through California mail being broleenby guerrillas, the Postmaster-General orders the California mail to be sent over the contractor’s route. It greatly exceeds in bulle the mail matter which he transports under his contract, and the fair ■ and reasonable value of the service is*$35,000. *He presents a elaim for this remuneration. The Postmaster-General replies that the compensation of*$14,000 *a year for improving the service nmst cover this, and that if the claim be pressed he will annul the arrangements for the improved service. The contractor refrains from pressing the claim and continues to receive the consideration of*$14,000, *but for less thorn a year.*

Where the Postmaster-General has the legal right to curtail the public expenditure by discontinuing a special service, and distinctly informs a contractor that he will do so if a disputed claim for other services be pressed, then the contractor is bound in equity and good conscience to inform the Postmaster-General that he does not acquiesce in his decision. His silence must be construed to have been intended to influence the conduct of the Postmaster-General and to lead him into a line of conduct prejudicial to the interests of the Government, and it constitutes the very essence of an estoppel in pais.

*The Reporters’*statement of the case:

The court found the following facts:

I. In 1858 the Postmaster-General entered into five written contracts with the claimant for the transportation of the mail *365between Iowa City and Fort Kearney. Between Iowa City and Des Moines the service was to be performed six times a week each way by four-horse coaches. Between Des Moines and Council Bluffs three times a week by two-horse coaches.' Between Council Bluffs and Omaha six times a week in four-horse coaches. Between Omaha and Columbus three times a week by two-horse coaches. Between Columbus and Fort Kearney once a week by four-mule covered spring-wagon.

And each of the contracts contained the following, provisions, requiring the contractor—

“To carry said mail in a safe and secure manner, free from wet or other injury, in a boot under the driver’s seat, and in preference to passengers, and to their entire exclusion if its weight and bulk require it.

“ To take the mail and every part of it from, and deliver it and every part of it at, each post-office on the route, or that may hereafter be established on the route, and into the post-office at each end of the route.”

On the 25th July, 1861, while these contracts were still in force, the claimant offered, in writing, “to improve the service from Omaha to Kearney City” — which had been substituted for Fort Kearney as the terminus — “ for $14,000 additional per annum,” and the Postmaster-General, on the 26th July, 1861, ordered, by an indorsement on the original contracts, that the service between Omaha and Kearney City be increased to a daily service, and that the claimant be allowed “$14,000 additional per annum, to take effect from the date of its commencement.” This additional service began on the 5th August, 1861.

II. On the 16th September, 1861, in consequence of the route established by Congress for the through California mail having been broken by the burning of bridges, the Postmaster-General ordered the California mail to be sent over the claimant’s routes; and the claimant transported it under and in pursuance of such orders from the 16th September to the 25th December, 1861. It greatly exceeded in bulk the other mail-matter which the claimant transported under his contracts, and on some of his routes required for its conveyance at times as many as five coaches per day in addition to the one coach which he would otherwise have run, and it at all times, and on all of his routes, required one or more additional coaches, which were used exclusively for it; *366and fcTie fair and reasonable value of the service for the period named was the sum of $35,100.

III. Immediately after the claimant’s service for carrying the California mail, as set forth in thesecond finding, had terminated, he presented his account therefor to the Postmaster-General, and requested that it be liquidated and paid; but the Postmaster-General refused to allow or pay the same, and he replied to the claimant, in writing, that “ when he made the arrangement to give him the $14,000 per annum additional for improved service between Columbus and Fort Kearney, it was in view of his conveying the overland mails over that route and through Iowa free of additional expense, should circumstances make it necessary temporarily so to send them,” and that, “if the claim for additional compensation for such service” in carrying the California mail “is to be pressed,” he, the Postmaster-General, would1 at once annul the arrangement for carrying a daily mail between Omaha and Kearney, and the consideration of $14,000 per annum. The claimant thereupon refrained from pressing his claim, and continued to run a daily mail between Omaha and Kearney, and to receive the consideration of $14,000 per annum, from the 12th February, 1862, when the Postmaster-General’s communication was written, up to the termination of his original contract, to the 30th June, 1862.

*Mr. Thomas Wilson*for the claimant:

The increase of $14,000 in compensation was on account of the increase in the service between Omaha and Fort Kearney, from weekly and tri-weekly to daily, and was no more than a reasonable compensation for that increase. Whether it was or not, it was what the Postmaster-General agreed to allow for the increase, and he cannot afterward make it apply on any further increase of service. The fact that the increase of service and of compensation occurred in *July*is a conclusive answer to the Postmaster-General’s allegation that the extra compensation was extended to recompense the contractor for extra expense in carrying the California mails, which did not commence to go over his route till *two months aflenoard.*If so intended, *i. e.,*“ to meet an emergency,” likely to be brief, why were the $14,000 agreed to be paid per *annum ?*Why was the payment continued *long after the emergency*ceased, and the California *367mails bad resumed their usual route ? As in fact it was so continued up to August, 1862,

Even if *nothing*were allowed for the increased service between Omaha and Fort Kearney, commencing in July, and the $14,000 *per annum,*were applied *pro rata*as compensation for carrying the California mails, a brief examination will show the miserable inadequacy of such compensation.- Say these mails were carried four months or one-third of a year: one-third of $14,000 is $4,666.66. The evidence shows the extra service to have been rendered for one hundred and sixteen days, and to have been worth $300 per day — that is, $34,800 for the one hundred and sixteen days.

It is too plain for argument that the increase of compensation in July was intended as consideration for the increase of service between Omaha and Kearney made at that time, and for no other purpose, and that if plaintiff is entitled to any extra compensation for carrying the California mails he has never received any part of such compensation.

The twenty-third section of the *Act 2d*July, 1836 (5 Stat. L., 85) provides that “no additional compensation shall be made to any mail contractor, so as that the compensation for additional regular service shall exceed the exact proportion which the original compensation bears to the original services to be performed.” In this case the contract-pay was about one-third of the expenses of running the line during this extra service.

The regular mail was three to five bushels per trip; its weight one hundred and fifty to two hundred and fifty pounds per trip. The California mail, carried by plaintiff, loaded from three to five coaches, and weighed between two and three thousand pounds. The plaintiff takes the ground, in answer to the proposition of the Postmaster-General, that he is obliged by the terms of his contract to transport *all*the mail, but that he is not bound to carry a greater amount of mail than can be transported, with the kind of conveyance, in the number of trips specified in his contracts. See Op. Att’y Gen’l Butler, 3d. Op., p. 24; GilpiiJs Digest, p. 1026. *Rhodes*v. *U. 8.,*Court Claims 1855, Dev. Bep., p. 119. *Riston v. U. 8.,*Court Claims 1855, Dev. Bep., p. 116.

*Mr. Assistant Attorney-General McMichael*for the defendants:

The claim rests upon the allegation that the carrying of this California mail is an extra service which was not contemplated *368in the original contract; and upon the further hypothesis, that it was not contemplated and provided for in a subsequent alteration of that contract, and, as thus contemplated, completely compensated.

Upon the part of the United States it is asserted that whether the contractor might or might not have had a legal or an equitable claim to compensation beyond that specified in the original contract, he has none whatever to any compensation beyond that secured to him by an alteration in the contract made before the performance of this service, which additional compensation was subsequently paid to him.

This matter stands thus : The contractor urged the necessity that might arise for carrying the California mail over his route as a reason for increasing the service and compensation thereon. The Postmaster-General ordered the increase .in view of such necessity. The contractor carried the overland mail when the expected exigency arose, and thereafterward presenting a claim for further compensation therefor, while he was still receiving the increased compensation allowed in view of such service, was promptly and plainly told that if he pressed this claim, the increased compensation he was then receiving would be withdrawn, and his early reply was asked. He made no reply, but went on receiving the increased compensation, and did not again press his claim until the period of his contract had expired, and it was beyond the power of the Government to withhold what the Department had notified him it would withhold if this claim were further urged.

Thus it is plain that the petitioner’s claim has no foundation in law or justice, but that the defense is strong in both. In good conscience, even, this claim should not be pressed. The court ought not to support, but should dismiss this petition.

Nott, J.,

delivered the opinion of the court:

We are agreed that the claimant was justly and legally entitled to be paid for the additional service, .which at the Postmaster-General’s request, and at great expense to himself, he rendered; that the service was not contemplated by the original contracts, nor by the subsequent order for additional mail service between Omaha and Kearney City; and that the compensation of $35,100, which he now seeks to recover, is fair and reasonable. But this meritorious cause of action the claim*369ant, by bis subsequent conduct, seems to have forfeited. The decision of the Postmaster-General in February, 1862, that the compensation sought was not due, and that the extra service was properly referable to the supplemental agreement for an improved mail service on one of the claimant’s five routes, though clearly erroneous, rendered the claim one of dispute'; "and his declaration that if it were to be pressed he would withdraw, as he had a legal right to do, the improved service then being performed at the rate of $14,000 a year, threw upon the claimant the burden of electing one or the other — the continuance of his existing contract, or the prosecution of his claim for service, already rendered. By his silence he led the Postmaster-General to believe that he acquiesced in the construction-which had been given to their pre-existing agreement; and by subsequently accepting the consideration of that agreement after the matter had thus become-one of dispute, he accepted it upon the implied condition that it was to put an end to-the matter in controversy.

“The general principal now is, that where the conduct of a party has been such as to induce action-by another, he shall be precluded from afterward asserting-to the prejudice of that other the contrary of that of which his conduct has induced the belief.” Per Strong, J.; *Hill*v. *Epley, (7*Casey, Penn. R., p. 334.) “As a general rule, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.” Per Nelson, Ch. J.; *Welland Canal Co.*v. Hathaway, (8 Wend. R., p. 483.) “Where aman has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.” Per Thompson, J.; *Niven*v. *Belknap,*(2 Johns. R., p. 589.) “No one is permitted to keep silentwhen he should speak, and thereby mislead another to his injury.” Per Davis, J.; *Gregg*v. *Von Phul,*(1 Wall., p. 281.) “An admission by a party intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests,” constitutes “ the very definition of an estoppel in pais.” Per Cowen, J.; *Dezell*v. *Odell,*(3 Hill R., p. 219.) “And if, whatever a man’s real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act *370upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth; and conduct by negligence or omission, where there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect.’’ Per Parke, B.; *Freeman*v. *Cook, (2*Exch. R., p. 663.)

It is to be noted here that the Postmaster-General possessed the reserved right of terminating at any time the service which the claimant was then performing. If the contract had been binding mutually for a fixed period, so that the Postmaster-General’s notice would have been a mere threat to harass the contractor by taking away from him an employment which he was legally entitled to enjoy, the equitable obligation to reply would not have fallen upon him. But when the Postmaster-General had the legal right to curtail the public expenditure by discontinuing the service, and distinctly informed the contractor that he should do so if the disputed claim was to be pressed, then the contractor was bound in equity and good conscience to inform the Postmaster-General that he did not acquiesce in his decision. His silence must have been intended *"to influence the*conduct” of the Postmaster-General, “ *actually leading him into a line of*conduct”'which was prejudicial to the interests of the defendants, whose' representative he was, and it constitutes *" the very definition of an estoppel in pais.”*

The only doubt that the case suggests arises from the smallness of the benefit which the contractor retained by his admission, and the comparative magnitude of the claim which he consented to forego. He was receiving for the additional service but $14,000 a year, and there remained but the third of a year ere the contract would expire, and against this he had a meritorious cause of action, amounting to "upward of $35,000. But as the smallest consideration of value is sufficient to sustain the obligation of a contract, so any substantial loss to be suffered may be enough to entitle a party to the benefit of an equitable estoppel; and courts, which cannot estimate the motives of men, cannot relieve for the smallness of the injury inflicted in the one case more than for the inadequacy of the benefit received in the other.

The judgment of the court is that the petition be dismissed.

Loreto, J., did not sit in this case, and took no part in the decision.