Statement of the Case. "IV. "In the advertisement of November 1, 1877, inviting proposals for carrying the mails of the United States in certain States and Territories, the Postmaster General invited bids for carrying said mails on the following route in California, to wit: "46,118. From Salinas, by Santa Rita and Natividad, to Gabilan, 15 miles and back, six times a week. "Leave Salinas daily, except Sunday, at 1 P.M.; "Arrive at Gabilan by 7 P.M.; "Leave Gabilan daily, except Sunday, at 6 A.M.; "Arrive at Salinas by 12 M. "Bond required with bid, $1800.' "This article of contract, made on the 15th of March, 1878, between the United States of America (acting in this behalf by the Postmaster General) and J. D. Carr, contractor, and A. B. Jackson, of Salinas, Monterey County, California, and George Pomeroy, of Salinas, Monterey County, California, as his sureties, witnesseth: That whereas J. D. Carr has been accepted, according to law, as contractor for transporting the mail on route No. 46,118, from Salinas, Cal., by Santa Rita and Natividad, to Gabilan and back, six times a week, at $796 per year, for and during the term beginning July 1, 1878, and ending June 30, 1882. * * * * * "For which services, when performed, the said J. D. Carr, contractor, is to be paid by the United States the sum of $796 a year, to wit: Quarterly, in the months of November, February, May and August, through the postmasters on the route, or otherwise, at the option of the Postmaster General; said pay to be subject, however, to be reduced or discontinued by the Postmaster General, as hereinafter stipulated, or to be suspended in case of delinquency. "It is hereby stipulated and agreed by the said contractor Statement of the Case. and his sureties that the Postmaster General may discontinue or extend this contract, change the schedule and termini of the route, and alter, increase, decrease, or extend the service, in accordance with law, he allowing a pro rata increase of compensation for any additional service thereby required, or for increased speed, if the employment of additional stock or carriers is rendered necessary; and in case of decrease, curtailment, or discontinuance of service, as a full indemnity to said contractor, one month's extra pay on the amount of service dispensed with, and a pro rata compensation for the service retained: Provided, however, That in case of increased expedition, the contractor may, upon timely notice, relinquish the contract. "It is hereby also stipulated and agreed by the said contractor and his sureties as aforesaid that they shall forfeit "1. The pay of a trip when it is not run, and, in addition, if no sufficient excuse for the failure is furnished, an amount not more than three times the pay of the trip. "2. At least one-fourth of the pay of the trip when the running is so far behind time as to fail to make connection with a depending mail. "3. For violating any of the foregoing provisions touching the transmission of commercial intelligence more rapidly than by mail; or giving preference to passengers or freight over the mail or any portion thereof, or for leaving the same for their accommodation; or carrying, otherwise than in the mail, matter which should go by mail; or transporting persons engaged in so doing, with knowledge thereof, a penalty equal to a quarter's pay. "4. For violating any other provision of this contract touching the carriage of the mails, or the time and manner thereof, without a satisfactory explanation of the delinquency, in due time, to the Postmaster General, a penalty in his discretion. That these forfeitures may be increased into penalties of a higher amount, in the discretion of the Postmaster General, according to the nature or frequency of the failure and the importance of the mail: Provided, That except as herein Statement of the Case. otherwise specified, and except as provided by law, no penalty shall exceed three times the pay of a trip in each case.' "OFFICE OF THE SECOND ASSISTANT POSTMASTER GENERAL. "DIVISION OF INSPECTION, "Washington, D. C., October 23, 1878. "SIR: I hereby certify that the mails have been carried by contractors in accordance with provisions of contract, or orders, on routes stated herein by number in the State of California, without any failures or delinquencies, so far as shown by returns received, for the quarter ended September 30, 1878. "Acting Second Assistant Postmaster General. "To the AUDITOR OF THE TREASURY FOR THE POST-OFFICE DEPARTMENT.' "On March 22, 1882, Second Assistant Postmaster General addressed a letter to the postmaster at Natividad and received information from him on April 6, 1882, that the mail was not carried from Gabilan by way of Natividad and Santa Rita, and that such had been the practice since the present contractor had the contract. The postmaster at Santa Rita certified to the Postmaster General that such had been the practice since he became postmaster. The date of the letters as to the continuance of the mode of carrying the mails was May 1, 1882. 66 CONCLUSION OF LAW. "Upon the foregoing facts the court determines, as a conclusion of law, that the claimant is entitled to recover the sum of $746.25." Judgment was thereupon rendered in favor of the petitioner Opinion of the Court. for $746.25, from which the defendant appealed to this court. The opinion of the Court of Claims will be found in 22 C. CL. 152. Mr. Attorney General and Mr. Heber J. May for appellants. Mr. A. J. Willard and Mr. Samuel M. Lake for appellee. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. The amount sued for was $782.17, of which the sum of $35.92, the aggregate of some small deductions upon other contracts, was disallowed by the Court of Claims, and that result accepted by the claimant. It appears from the third finding that the Postmaster General deducted from the claimant's compensation, under contract No. 46,118, $746.25, "which deduction equals onequarter of the total compensation fixed by the contract for whole service under it during the period covered by the alleged delinquency;" being the three years and three-quarters from July 1, 1878, to March 31, 1882. It follows, then, that the contractor performed the service for the months of April, May and June, 1882, as required by the contract, as hereafter considered. As to $398 of the $746.25, that sum was withheld from the compensation under the contract in question, the last two quarters not having been paid, but the balance of $348.25 was deducted from moneys coming to the petitioner on other contracts, and he contends that it should not have been so deducted, because that amount had been voluntarily paid by the United States, and, therefore, could not be recovered back. But if the contractor was not entitled to $746.25 of the compensation provided by this contract, and if payments were made thereon up to the last two quarters by mistake, for service that had not been performed, or under such circumstances as brought them within section 4057 of the Revised Statutes, then the payments could be recovered back, and their deduction in part from other money coming to Opinion of the Court. petitioner was proper in the settlement of the accounts between the parties. Section 4057 is as follows: "In all cases where money has been paid out of the funds of the Post-Office Department under the pretence that service has been performed therefor, when, in fact, such service has not been performed, or as additional allowance for increased service actually rendered, when the additional allowance exceeds the sum which, according to law, might rightfully have been allowed therefor, and in all other cases where money of the Department has been paid to any person in consequence of fraudulent representations, or by the mistake, collusion, or misconduct of any officer or other employé in the postal service, the Postmaster General shall cause suit to be brought to recover such wrong or fraudulent payment or excess, with interest thereon." This section was applied in United States v. Barlow, ante, 271, 281, and Mr. Justice Field, in delivering the opinion, quotes with approval the language of Baron Parke in Kelly v. Solari, 9 M. & W. 54, 58, that "where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it;" and adds: "Reasons for the application of the rule are much more potent in the case of the contracts of the government than of contracts of individuals; for the government must necessarily rely upon the acts of agents, whose ignorance, carelessness or unfaithfulness would otherwise often bind it, to the serious injury of its operations." Nothing more need be said on this point, and this brings us to the real question in the case. Claimant contracted to carry the mails "from Salinas, by Santa Rita and Natividad, to Gabilan, 15 miles and back." The time to be taken on the trip was specified at six hours each way. There is no ambiguity in this contract, from which a doubt could arise as to whether the return route was to be |