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and that by means of false and fraudulent vouchers the said defendants (naming both) "received larger sums than they were entitled to receive"; for these allegations show that both were participants in the fraudulent transaction.

In Error to the Circuit Court of the United States for the Northern District of California.

This was an action brought by the United States against George H. Piatt and Monroe Salisbury to recover excessive payments for services in carrying the mails. The court below sustained a demurrer to the complaint, and dismissed the action, and the United States brought error.

*This action was instituted by the United States to recover from the defendants in error certain moneys claimed to have been paid to them for services in car ing the mail, in excess of the amount to which they were legally entitled.

The first count alleges, in substance, that on March 15, 1878, the defendant Piatt contracted in writing with the United States, through the postmaster general, to carry the mail three times a week for four years, from July 1, 1878, for a consideration of $16,500 per annum, on the route then known as No. 36,107, between Bozeman, Mont., by way of Shields river, Crow Agency, Stillwater, Head of Navigation, Pompey's Pillar, Fort Peace, and Big Horn City, to Tongue river and back. By power of attorney, dated August 15, 1878, Piatt authorized the defendant Salisbury to collect from the auditor of the treasury for the post-office department all pay to become due for carrying the mails upon that route; and subsequently, on December 13, 1878, with the permission of the post-office department, he sublet his contract to Salisbury. Piatt entered upon and continued the performance of this service from July 1, 1878, until December 13, 1878, from wbich date the service was performed by Salisbury.

For the purpose of expediting the service, the post-office department, by order dated December 5, 1878, on agreement with Piatt, shortened the schedule of departures and arrivals on the above route after December 16, 1878, by reducing the time from 132 hours to 72 hours in summer, and 96 hours in winter, allowing therefor additional compensation of $16,500 per annum, in supposed accordance with the provisions of section 3961 of the Revised Statutes of the United States. A similar order was made January 17, 1879, allowing an additional annual sum of $3,542.92 from January 25, 1879, for an increased distance on the route of 35 miles, such allowance being computed pro rata upon the basis of the compensation previously allowed. A further order, dated July 15, 1879, increased the service to seven trips a week from August 1, 1879, for which the additional sum of $18,723.89 per annum was allowed upon the same basis of compensation. Both Piatt and Salisbury consented to the conditions of these orders.

Platt procured the issuing of the above orders amending the original contract. They were issued solely upon the basis of certain representations made in his sworn statement dated August 16, 1878, to the effect that to carry the mail upon said route three times a week, on a schedule of 132 hours, required 26 men and 90 horses, while the proposed expedited schedule of 72 hours in summer and 96 hours in winter would require 48 men and 200 horses. This statement was wholly false and fraudulent, in that it alleged an increase of 22 men and 110 horses necessary to perform the expedited schedule, whereas in fact neither Piatt nor Salisbury ever required or used in performing the mail service, three times a week or seven times a week, more than 34 men and 100 horses, being 14 men and 100 horses less than Piatt alleged in his sworn statement were necessary for performing said expedited service three times a week. By means of sucb fraudulent representations by Piatt, and by means of false vouchers presented to the post-office department, Piatt and Salisbury received from the plaintiff a larger sum of money than they were lawfully entitled to receive. The sum so received by them during the period of their service, by means of such false statements and fraudulent vouchers, was $261,016.50, being $99,556.20 in excess of the amount that could, after certain reductions and remissions, be lawfully paid to them. The false statements above referred to were designed to mislead, and did mis. lead, the post-office department of the Unit. ed States, and the defendants were entitled to receive from the United States for such service the sum of $148,438.23 and no more.co

Payment of such excess having been demanded and refused, * judgment was asked against the defendants for $99,556.20, with interest from August 21, 1882, and costs of suit.

The second count is the common-law count for money bad and received.

The third count sets forth the same facts as are embodied in the first count, and alleges that plaintiff's officers were induced to pay the $99,556.20 in mistake of fact, and that that sum was received by defendants contrary to section 3961 of the Revised Statutes of the United States.

The payments referred to are set out in full in an exhibit showing the amounts defendants were lawfully entitled to receive on the basis of the actual increase of stock and carriers consequent upon the reduction in running time, as before mentioned.

Piatt was not served with process, nor did he appear or plead. Service of process was had upon Salisbury, who appeared and demurred both generally and specially to the complaint.

The court below sustained the demurrer and dismissed the complaint as to both defendants. Each defendant is cited in the writ of error upon which this action is before

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us, and service acknowledged by the attor that he did so upon the basis of the sword ney of both.

statement alleging an increase of "men and The plaintiff in error has assigned the fol horses” necessary for the performance of the lowing errors: (1) That the circuit court erT expedited schedule. The defendants in error ed in sustaining Salisbury's demurrer to the are bound by this sworn statement, and as complaint; (2) that judgment was wrongly the increased compensation was ordered only given in favor of both defendants, Piatt not upon the assumption of the truth of its alle having appeared or pleaded.

gations, and in conformity with the statute, Sol. Gen. Maxwell, for the United States.

and as they agreed to the amendment of the Monroe Salisbury, pro. se.

original contract in this regard, they are estopped from asserting that this sworn state

ment was not intended to bring the contract Mr. Justice HARLAN, after stating the within the statute. facts in the foregoing language, delivered the If the term "stock and carriers' does not in. opinion of the court.

clude "men and horses," then the postmaster By section 3961 of the Revised Statutes of general had no right to make the increased the United States it is provided that “no ex allowance mentioned, and, if this be true, tra allowance shall be made for any increase such additional allowances exceeded the “sum of expedition in carrying the mail unless which, according to law, might rightfully thereby the employment of additional stock have been allowed therefor"; and, by the proand carriers is made necessary, and in such visions of section 4057 of the Revised Statcase the additional compensation shall bear utes, the postmaster general “shall cause suit no greater proportion to the additional stock to be brought to recover such wrong and carriers necessarily employed than the payment or excess, with interest thereon." compensation in the original contract bears But, as by the provisions of section 3961, "no to the stock and carriers necessarily employ extra allowance shall be made for any ined in its execution."

crease of expedition in carrying the mail unIt is contended that as the statement of the less thereby the employment of additional contractor in every case merely stated the stock and carriers is made necessary," and number of men and horses required to per as the postmaster general, upon the defend. form the service on the contract time, and ant Piatt's sworn statement that certain inalso how many men and horses, in his opin creases of men and horses were necessary to ion, it would require to perform the service perform the service upon the proposed ex. on the proposed expedited schedule, and as it pedited schedule, made the said allowance of merely alleged that the subcontractor or per increased compensation, the conclusion must son who performed the service did not use be that the plaintiff made, and the defendants the men and horses stated to be necessary, accepted, the amended contract, with the un. the complaint is insufficient to maintain this derstanding that it was within the provisions action, for the reason that section 3961 of of the statute. the Revised Statutes, under which the ac The defendants in error further contend tion is brought, provides nothing as to men that the increased allowances in question were and horses, but does provide that the allow not made by the postmaster general solely upance for expedition shall be based upon the on the basis of the sworn statement designatadditional stock and carriers made necessary ing the additional number of men and horses by the expedited schedule; and, it is said, necessary to perform the service upon the pro"there is not a word in the complaint that posed expedited schedule, but that it was charges that the defendants did not employ merely for the information of the postmaster additional stock and carriers on the expedit- general in making the new schedules. But, ed schedule in exact proportion to the expedi whether it be true or not that he acted solely tion allowance." It is also said that the upon such representations, it is sufficient that words “stock and carriers” in section 3961 they constituted a substantial part of the inare not synonymous with the words "men formation from which he made the new and horses”; that the word “stock” does not schedules allowing increased compensation. mean simply live stock, nor does the word The complaint, however, alleges that the postcarriers" mean either horses or men, but master general did allow the increased comrather includes all the equipment of the pensation solely upon the basis of these false route, whether horses, wagons, harness, stage representations. The allegations of the comstations, fuel, food, stables, in fact every- plaint must be taken to be true for the purthing needed to carry on the service, such poses of this demurrer. The question is being the popular sense in which these words whether the facts as stated, if true, constitute are used.

a sufficient cause of action. We think they There is nothing of substance in these con do. tentions. Whatever may be comprehended by The third count alleges that the excessive the term "stock and carriers” in section 3961, payments in question were made by the plain. it certainly includes within it “men and tiff in mistake of fact. We do not doubt the horses”; and, as the postmaster general could plaintiff's right to recover the amount of such allow an increased compensation only in con excessive payments in case of fraud in the formity with that statute, it must be assumed transaction leading to their disbursement

But, if there were no actual fraud in these sworn statement of Piatt was presented "by proceedings, it is clear from the allegations and on behalf of both the said defendants, of the complaint that the defendants received Piatt and Salisbury, to the postmaster genthe moneys in question without consideration; eral.” The complaint further alleges that by for, whatever may be the meaning of the means of these false representations, and “by term "stock and carriers,” the original con means of false and fraudulent vouchers pretract itself, and the sworn statement on the sented to the said post office department of the basis of which it was amended, mention only United States, the said defendants, George H. “men and horses” as the means of performing Piatt and Monroe Salisbury, were paid by the service of carrying the mail, and it is and received from this plaintiff a larger sum shown by the allegations of the complaint of money than they were entitled to receive." that to perform the expedited schedule either It thus appears that each of the defendants three times per week or seven times per week participated in this transaction, and it was there were never required nor used "more than proper to sue them as jointly and severally 34 men and 100 horses, being 14 men and 100 liable. horses less than the said Piatt alleged in bis There is but one cause of action, and that said sworn statement were necessary for per for the excessive payments made between De forming said expedited service three times cember 16, 1878, and August 21, 1882. Piatt per week.” The provisions of section 4057 was contractor during this period, and the of the Revised Statutes are applicable to this service was performed for him by Salisbury, very state of case. That section provides to whom was paid the compensation agreed that "in all cases where money has been paid upon in the amended contract. The single out of the funds of the post-office department cause of action, then, is for the recovery of under the pretense that service has been per- such amount as was in excess of the sum al. formed therefor, when, in fact, such service lowed by law. Piatt and Salisbury, accord. has not been performed, or as additional al- ing to the facts admitted by the demurrer, lowance for increased service actually ren are equally concerned in the fraud perpetratdered, when the additional allowance exceeds ed upon the government,-one by presenting the sum which, according to law, might right in behalf of both a sworn statement containfully have been allowed therefor, and in all ing false and fraudulent allegations, whereby other cases where money of the department the postmaster general was induced to amend has been paid to any person in consequence of the original contract, allowing increased comfraudulent representations, or by the mistake, pensation; the other by. presenting for pay-* collusion, or misconduct of any officer or other ment false and fraudulent vouchers comportemployé in the postal service, the postmastering therewith, upon the faith of which the general shall cause suit to be brought to re money was paid. They are, then, jointly and cover such wrong or fraudulent payment or severally bound to refund the sum so paid excess, with interest thereon."

and received in violation of section 3961 of We are of opinion that the court below the Revised Statutes. erred in sustaining the demurrer to the third Assuming, as we must, on this hearing, the count

truth of the facts set forth in the complaint, Very little need be said upon the question we are of opinion that the demurrer should of misjoinder, constituting the second ground have been overruled. of demurrer.

As Piatt was not in the court below, it was Section 3963 of the Revised Statutes pro error to have sustained the demurrer and disvides that “no contractor for transporting the missed the action as to him. mail within or between the United States and The judgment is reversed, and the cause reany foreign country shall assign or transfer manded, for further proceedings in conformhis contract, and all such assignments or ity to this opinion. Reversed. transfers shall be null and void." If the alleged subletting of the contract to Salisbury be regarded merely as an arrangement be

(157 U. S. 121) tween the defendants, still Piatt was liable

UNITED STATES v. SALISBURY. for the performance of both the original and the amended contract during the whole pe

(March 4, 1895.) riod of service. The claim of the plaintiff is

No. 167. confined to the period between December 16, Postal CONTRACTS EXCESSIVE PAYMENTS FOR 1878, and August 21, 1882, during which time

EXPEDITING MAJLS-ACTION TO RECOVER. the expedited schedule was in force. So there

Excessive extra allowances paid to a sub

contractor for carrying the mails, upon the faitb is nothing in the contention of improper join of false representations as to the number of der in reference to matters previous to De "horses anal men" required for expediting the cember 13, 1878. As to matters subsequent

service, which false representations were made

by the original contractor in the interest and at thereto, the joinder was proper, for both de

the instigation of the subcontractor, may be refendants were parties to the fraudulent trans covered from the latter by an action brought un. action whereby the plaintiff was induced to der Rev. St. $ 4057. See U. S. v. Piatt, 15 make the increased allowance of compensa

Sup. Ct. 498. tion referred to; and it is specifically alleged In Error to the Circuit Court of the United In the third count of the complaint that the States for the Northern District of California.

*120

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This was an action by the United States to perform the service upon the then erist. against Monroe Salisbury to recover excess ing schedule*it required 6 men and 24 horses, Ive payments for services in expediting the and to perform the proposed expedited servcarrying of the mails. A demurrer to the ice would require 15 men and 60 horses, complaint was sustained by the circuit court, which representations were wholly false and and the action dismissed. The United States fraudulent, in that neither McDevitt nor brings error.

Salisbury ever required or used in carrying This case differs very little from the one the mail upon the expedited schedule any just determined. 15 Sup. Ct. 498. The com greater number of men or horses than Mcplaint is in three counts. The first count Devitt alleged in his sworn statement were alleges, in substance, that on March 15, 1878, required for or actually used in performing one Thomas A. McDevitt contracted in writ the service upon the original schedule. And ing with the United States, through the post those false representations were designed to master general, to carry the mail on the route mislead and did mislead the postmaster geu. then known as No. 36,115, six times a week, eral. for the period of four years from July 1, By means of such fraudulent statements by 1878, for a consideration of $6,425 per* an McDevitt, and by means of fraudulent vouchnum, between Helena, Mont., by way of ers presented to the post-office department, Hot Springs, Mo., Black Fort City, Toll Gate, Salisbury was paid by and received from the Deer Lodge, Yamhill, Pioneer, New Chicago, Unted States a larger sum of money than he and Bear's Mouth, and Missoula and back. was entitled to for the performance of such In pursuance of this contract, McDevitt en mail service under the amended contract. tered upon and continued the performance The sum so received by him in excess of of the service until October 1, 1878, at which what he was legally entitled to receive bedate he sublet his contract to Monroe Salis tween July 1, 1879 (the date on which the bury, the defendant, who performed the sery subcontract was first recognized by the postice during the remainder of the said contract office department), and July 1, 1882, was term, to wit, until June 30, 1882. On July $30,690.16. The original contract between 1, 1879, the subcontract was duly recognized the plaintiff and McDevitt, and the subcon. by the postmaster general, and thenceforth tract between McDevitt and Salisbury, were such sums as were due and payable by vir

exhibited with the complaint and made part tue of the original contract, as afterwards

thereof. amended and changed in the manner herein Judgment was demanded in this sum, with after set forth, were paid to said Salisbury. | interest from July 31, 1882, and costs.

For the purpose of expediting the service The second count is the common-law count between Helena and Missoula and the inter for money had and received. mediate places mentioned, the postmaster The third count sets forth the same facts general and McDevitt agreed, on December as in the first count, and alleges that by rea24, 1878, to shorten the schedule of departures son thereof the plaintiff's officers were inand arrivals on said route from January 1, duced to pay the moneys aforesaid from July 1879, and to increase the service. According- 1, 1879, to July 31, 1882, amounting in the ly, by order of the postmaster general, the aggregate to $30.690.16, which sum was paid running time upon the route was reduced by the plaintiff's officers as above set forth, from 36 hours in summer and 59 in winter in mistake of fact, and was received by said to 30 hours in summer and 45 hours in win defendant contrary to the provisions of secter, in consideration of which an additional tion 3961 of the Revised Statutes of the Unitsum was allowed of $9,637.50 per annum, in ed States. supposed accordance with the provisions of Sol. Gen. Maxwell, for the United States. section 3961 of the Revised Statutes of the Monroe Salisbury, per se. United States. By said order the service was also increased one trip per week from Mr. Justice HARLAN, after stating the January 1, 1879, for which an additional an facts in the foregoing language, delivered the nual allowance of $2,671.08 was made,---such | opinion of the court. allowance being computed pro rata upon the basis of the compensation in the originai con sued, while in the former case both the printract as increased by the additional aliow cipal contractor and the subcontractor were ance for increase of speed. These changes sued. were agreed to by McDevitt.

The present case is controlled by the deci. After the execution of the subcontract be sion just rendered in U. S. v. Piatt, 15 Sup. tween McDevitt and Salisbury, whereby all Ct. 498. moneys thereafter due the former under the * The judgment is reversed, and the cause original contract were to be paid to the lat remanded, with directions to overrule the ter, McDevitt, in his own name, but in the in demurrer, and for further proceedings in conterest and at the instigation of Salisbury, formity with this opinion. Reversed. did, by means of certain false and fraudulent representations set forth in a sworn The decisions in this and the preceding statement dated December 18, 1878, repre case control cases 168, 169, 170, 171, the title sent to the postmaster general that in order of each of those cases being United States v.

be | In this case the subcontractor only was

Salisbury. The judgment in each case is re Pullman Palace-Car Company, at Pullman, versed, and the cause remanded, with direc Ill.: “We write to say that we are now tions to overrule the demurrer, and put the ready to take cars for our Wyandotte and defendant to his answer. Reversed.

Twelfth street lines, and should be glad to have you call on us at your convenience."

Upon receiving this letter, Pullman, who (157 U. S. 94)

had a general knowledge of the grades and PULLMAN PALACE-CAR CO. V. METRO

curves of the defendant's line, went to KanPOLITAN ST. RY. CO.

sas City to discuss the proposed contract.

From Kansas City he went to Chicago, and (March 4, 1895.)

from the latter place, under date of June 21, No. 146.

1887, sent to the president of the defendant SALE-CARS BUILT ON ORDER-WHEN TITLE PASS

company a letter written by the general ES-LATEXT Defects—Right OF RESCission.

manager of the plaintiff, under date of June 1. Cable-railway cars were built on order, without specifications as to the brakes, and part

21, 1887, as follows: "I beg to inclose here. of them were inspected at the builder's shops, as with contract with specifications attached, required by the contract.

These were pro executed by me in duplicate, for the building nounced satisfactory, and directions were given

of twenty-five combination closed and open to finish the remainder in the same manner, and forward them. Held, that the title to all pass

street cars for your company. Kindly sign, ed at the time of shipment, notwithstanding the and return to me one copy of contract for existence of latent defects in the brakes, which our files. You will notice in the specificawere only disclosed wben put in operation on the purchaser's road.

tions that the space for the lettering has 2. The right of rescission, if any such there been left blank, and I would be glad if you after existed, was lost by the purchaser's subse would indicate on the specifications returned quent demand that the defects be remedied, and

the lettering you desire applied to the cars." his expressed willingness to pay for the cars as soon as this was done, taken in connection with

The contract referred to in that letter was the seller's assurances that he would remedy the in these words: “Pullman's Palace-Car Comdefects at his own cost, and his continued at pany will build for the Metropolitan Streettempts to do so. 3. Having attempted a rescission and refus

Railway Company twenty-five combination ed to use the cars, the purchaser's only remedy, closed and open cable cars, as per general when sued for the price, was to reduce the re specifications hereto attached and made a covery by an amount suflicient to procure the

part of this agreement, and deliver the same substitution of new brakes for the defective ones.

f. o. b. (free on board] Pullman Junction, In Error to the Circuit Court of the United Kensington, Ill., on or before October 10th, States for the Western District of Missouri. | 1887, delays by fires, strikes, and unavoidable

*This action was brought by the Pullman hindrances excepted, for the sum of two Palace-Car Company to recover from the thousand dollars each. Terms, cash on deMetropolitan Street-Railway Company the liveries. Cars to be inspected and accepted sum of $54,219.70, with interest from March at our works. Your written acceptance here.ro 14, 1888, alleged to be due to it under a cer of* will constitute a contract mutually binding tain contract for the construction of cars upon both companies.” To this contract were for the defendant company.

appended the above general specifications. The principal defense was that the defend These specifications called for cars in length ant rightfully rescinded the contract, and 31' 9" "over all,” in width 6'6" or more over tendered the cars back to the plaintiff, who sides. They contained nothing relating to refused to receive them, and that, after such brakes except the following: "Brakes to be rescission and refusal, the defendant com operated by gripmen, with lever, both trucks." pany stored the cars in a proper place, sub On the 27th of June, 1887, defendant's chief ject to the order of the plaintiff. The de engineers wrote to the plaintiff as follows: fendant also, by way of counterclaim, sought "Your letter of the 21st, inclosing contracts damages against the plaintiff for failure to and specifications in duplicate for the twenperform the contract.

ty-five combination cars for our Twelfth The action arises out of certain facts set street line, addressed to our president, Morse, forth in a special finding by the court below. has been referred to us for attention in his Those facts are substantially as follows: absence, and we inclose you with this one

* Prior to May 15, 1887, the Metropolitan copy, duly executed by us on behalf of the Street-Railway Company, a corporation of company. Will you kindly adrise about Missouri, was engaged in the construction of włen we may expect to get the general a double-track railway on certain streets in plans which Mr. Pullman, when here, prom. Kansas City. The maximuin grade of its ised to let us have?" line was 13 and 14 feet ascent in a distance Between the 1st and 16th of July, 1887, of 100 feet. There were a number of grades the plaintiff's engineer, Twyman, visited on the line running up to 10 per cent., and Kansas City, stating that the general puralso numerous sharp curves.

pose of his visit was to determine upon the On the 15th of May, 1887, the defendant's general features of the cars, the shortest roadbed having been constructed and the curve and other physical conditions of the tracks laid, its chief engineers wrote to road, the radius of the shortest curve a car Charles Pullman, the general agent of the would have to go around, and to arrange

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