Messrs. Edwin C. Brandenburg, Clarence A. Brandendurg, and F. Walter Brandenburg for appellant.
Mr. Justice Lurton delivered the opinion of the court:
The appellant had a four-year contract, commencing [222 U.S. 496, 500] July 1, 1902, for screen-wagon mail service between the postoffice and railway mail stations at Omaha, Nebraska. On May 20, 1903, the Postmaster General canceled the contract and relet it to other parties. Thereupon appellant brought this suit in the court of claims, asserting that he had faithfully performed his agreement, but that he had been required to carry mails to and from three railway companies not included in his contract. That his equipment was ample for the service he contracted to render, but that he had been ordered to provide equipment adequate to the excessive service demanded, and that the cancelation of his contract was therefore unauthorized. His suit was to recover, first, the balance due under the contract as construed by the Department; second, the reasonable value of the excess service he had, under protest, been compelled to render; third, the loss of profit resulting from the wrongful annulment of his contract; and, finally, the loss sustained in disposing of equipment which had been bought for the purpose of carrying out his contract.
As is the case with mail contracts, the manner and means of performance were carefully prescribed, and power was reserved to the Postmaster General to require other and further facilities if it should be found necessary for the good of the service. The power of the Postmaster General to supervise and the duty of the contractor to conform to his regulations were plainly written down. That vigilant and prompt service might be enforced, he was given the right to make deductions, by way of fines, from compensation earned, for defects in equipment or negligence in the performance of the service. For repeated failures in performance, or acts of neglect or disobedience to orders, he was given power to annul the contract without impairing the right of the government to recover damages for nonperformance.
The findings of the court below as to the repeated [222 U.S. 496, 501] failures of the appellant in the performance of his contract, the inadequacy of his equipment, and his disobedience to the requirements that he should enlarge and improve his facilities, make it clear that the Postmaster General did not act arbitrarily, nor exceed the power reserved, by the inflicting of fines or the final cancelation of the agreement on May 20, 1903. When the contract was canceled, it was directed that compensation due should be withheld and the contract relet at the contractor's expense. This reletting was at a price of some $14,000 in excess of what the cost would have been if appellant had performed his agreement. The court below found that when the contract was annulled there was due appellant $2,984.72. For this a judgment was asked, but denied, the court below finding that the loss to the government as a result of reletting the contract was greatly in excess of the amount due to appellant. His petition was therefore dismissed.
If the contract, fairly construed, exacted the amount of service which the Department claimed, the case of appellant must fail, in view of the facts found as to his insufficient performance, and the loss resulting to the government from the necessity of reletting the unfinished term of the agreement.
The Postmaster General construed the contract as requiring appellant to receive from and deliver to all railroads using the Union Station at Omaha. This construction required him to receive from and deliver to three railroad companies not specified in the contract; namely, the Wabash, the Chicago & Northwestern, and the Chicago, Milwaukee, & St. Paul. The case must therefore turn upon the question as to whether the service contemplated by his contract included mails to and from the railways mentioned.
Coming, then, to the service required by the contract. The proposal for the Omaha mail-wagon service and its acceptance were according to a printed official form. This [222 U.S. 496, 502] proposal and acceptance, making the contract proper, refer to and make the public advertisement of the Postmaster General for proposals a part of the agreement, and from it the service contemplated is discovered. That advertisement included certain 'instructions to bidders,' of which they were required to take notice. Among other things, these 'instructions' included the following provision:
Under the heading 'Union Station,' in the schedule referred to, there appear the names of four railroad companies opposite the words 'Union Station,' applicable to each of the named companies, thus:
Illinois Central R. R. Co. (143,077).
Union Pacific R. R. Co. (157,001).
Chicago, Rock Island, & Pacific Rwy. Co. (157,064).
Missouri Pacific Rwy. Co. (157,075).'
It will be noticed that the named railroads bringing mail into the Union Station do not include the Wabash, the Chicago & Northwestern, or the Chicago, Milwaukee, & St. Paul. Notwithstanding this omission, appellant was required to carry to and from the Union Station the mails delivered there by these three companies, and to be delivered there from the post-office, to be carried by the same companies. This appellant did under protest, and upon this his suit is grounded.
But the explanation and answer is simple: Originally, [222 U.S. 496, 503] the contract routes of these companies terminated at the Union Pacific transfer at Council Bluffs, Iowa, where the mail was transferred to the Union Pacific Railway and carried into Omaha. After the construction of the Union Station, each of these companies procured the right to carry their mail over the Union Pacific Railway into the Union Station. This saved delay in transfer. The court below found that 'the trains so performing said service were known and treated by the Postoffice Department as mail trains of the Union Pacific Railroad Company, route No. 157,001, and were operated under the rules of said Union Pacific Railroad Company, and payment was made therefor to the said Union Pacific Company. All weights of mail carried by said three roads were credited to the Union Pacific Railroad route and weighed thereon. The screen-wagon contractor under the preceding advertisement and contract, which were similar to the one in this case, carried mails to and from the the trains of said three roads as part of his contract, and these facts were known to persons having knowledge of the service.'
This had for many years been the method of handling the mails carried by the three companies referred to when appellant made his proposal. True, he says he did not know it; but the advertisement warned him of the necessity of making himself familiar with the 'terms of the contract, schedule of services and instruction herein, before they should assume any liabilities as such bidders or sureties, to prevent misapprehension.' Among the facts found is this:
Knowing of the manner in which the mails carried by the three railroads in question were handled, acquired after the contract was signed, is not, of course, fatal to his contention that the contract did not include that mail matter. It does, however, appear that after his proposal had been accepted, and before the beginning of performance, he actually took a temporary contract for the carriage of the identical mails, so that when he entered upon his own regular contract he was fully aware of the conditions. This must, at least, weaken the force of his going forward under protest. But aside from this information, the advertisement and instructions warned him to familiarize himself with the situation by personal investigation and inquiry. This he asserted he had done, for in his printed proposal he stated that 'this proposal is 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.'
But it is urged that appellant is at least entitled to a judgment for $ 2,984.72, which the court below found to be the amount due when the contract was terminated. This contention is based upon the absence of any pleading setting up as a counterclaim or set-off the difference between the cost of the service under the reletting and the entire contract price for the full term under appellant's contract. But no such objection seems to have been made in the court of claims. That court had all the facts be- [222 U.S. 496, 505] fore it. It found that there was due on May 20, 1903, for services under the contract prior thereto, $2,984.72. But it found, on the other hand, that at that date the contract had been lawfully annulled, and that the necessary reletting had resulted in a loss to the government of a very much larger sum. Upon this showing it properly concluded that the amount due was more than offset by the loss resulting from reletting at a higher price. How it might be if this objection had been seasonably made, it is not an error for which this court will reverse when not made until upon appeal. In Wisconsin C. R. Co. v. United States, 164 U.S. 190, 212 , 41 S. L. ed. 399, 407, 17 Sup. Ct. Rep. 45, a like obection was made as to claims coming from the court of claims, and this court said: