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had been compelled to pay. Many of the 478, 59 N. E. 657), it was held that a mancases were reviewed in the opinion of the ufacturer of an iron boiler known as a vulcourt, and the general principle was recog-canizer, which had been furnished upon an nized that, notwithstanding the negligence order which required a boiler which would of one, for which he has been held to re-stand a pressure of 100 pounds to the spond, he may recover against the principal square inch, which order was accordingly delinquent where the offense did not involve accepted, the manufacturer undertaking to moral turpitude, in which case there could make the boiler in a good and workmanlike be no recovery, but was merely malum pro- manner, but which, because of a defect, in hibitum, and the law would inquire into that the hinge of the door was constructed the real delinquency of the parties, and in such a way that it did not press tight place the ultimate liability upon him whose enough against the face of the boiler to fault had been the primary cause of the stand a pressure of 75 pounds, at which injury. The same principle has been recog- pressure the packing blew out and allowed nized in the court of appeals of the state the naphtha vapor to escape, was liable for of New York in Oceanic Steam Nav. Co. v. the damages which the hose company had Compañia Transatlantica Española, 134 N. been compelled to pay to one of its emY. 461, 30 Am. St. Rep. 685, 31 N. E. 897, ployees, injured by the accident, although the second proposition of the syllabus of the the defect might have been discovered upon case being:
reasonable inspection by the hose company. “Where, therefore, a person has been com- In that case the boiler was sold upon a pelled, by the judgment of a court having warranty. As was said by Mr. Chief Jusjurisdiction, to pay damages caused by the tice Holmes, delivering the opinion of the negligence of another, which ought to have court: been paid by the wrongdoer, he may recover “The very purpose of the warranty was of the latter the amount so paid, unless he that the boiler should be used in the plainwas a party to the wrong which caused the tiff's works with reliance upon the defenddamage.”
ant's judgment in a matter as to which the In a case cited and much relied upon at defendants were experts and the plaintiff the bar (Gray v. Boston Gaslight Co., 114 presumably was not. Whether the false Mass. 149, 19 Am. Rep. 324), a telegraph warranty be called a tort or a breach of conwire was fastened to the plaintiff's chimney tract, the consequences which ensued must without his consent, and, the weight of the be taken to have been contemplated and wire having pulled the chimney over into were not too remote. The fact that the rethe street, to the injury of a passing trav-liance was not justified as toward the men eler, an action was brought against the does not do away with the fact that the property owner for damages, and notice was defendants invited it, with notice of what duly given to the gas company, which re might be the consequences if it should be fused to defend. Having settled the dam- misplaced, and there is no policy of the law ages at a figure which the court thought opposed to their being held to make their reasonable, the property owner brought suit representations good.” against the gas company, and it was held Other cases might be cited which are apliable. In the opinion the court said: plications of the exception engrafted upon
“When two parties, acting together, com- the general rule of noncontribution among mit an illegal or wrongful act, the party wrongdoers, holding that the law will inwho is held responsible in damages for the quire into the facts of a case of the characact cannot have indemnity or contribution ter shown, with a view to fastening the ultifrom the other, because both are equally mate liability upon the one whose wrong culpable or participes criminis, and the has been primarily responsible for the indamage results from their joint offense. jury sustained. In the present case there This rule does not apply when one does the is nothing in the facts as stated to show act or creates the nuisance, and the other that any negligence or misconduct of the does not join therein, but is thereby exposed railroad company caused the defect in the to liability and suffers damage. He may car which resulted in the injury to the recover from the party whose wrongful act brakeman. That company received the car has thus exposed him. In such case the from its owner, the Hammond Packing Comparties are not in pari delicto as to each pany, whether in good order or not the other, though, as to third persons, either record does not disclose. It is true that a may be held liable.”
railroad company owes a duty of inspection In a later case in Massachusetts (Boston to its employees as to cars received from Woven Hose & Rubber Co. v. Kendall, 178 other companies as well as to those which it Mass. 232, 51 L. R. A. 781, 86 Am. St. Rep. I may own. Baltimore & P. R. Co. v. Mackey, (196 U. S. 229) 157 U. S. 73, 39 L. ed. 624, 15 Sup. Ct. Rep. LUTHER CLAY SLAVENS, Appt., 491. But in the present case the omission
0. of duty for which the railroad company
UNITED STATES. was sought to be held was the failure to inspect the car with such reasonable dili. Postoffice-mail contracts right of Postgence as would have discovered the defect in master General to terminate-extra seroit. It may be conceded that, the railroad ices. company having a contract with the terminal company to receive and transport the 1. The Postmaster General may cancel a mail cars furnished, it was bound to use reason
contract, the service under which has been
materially decreased by using street cars to able diligence to see that the cars were
carry mail, in the exercise of his authority turned over in good order, and a discharge under the contract and U. S. Postal Laws and of this duty required an inspection of the Regulations, s 817, to increase, decrease, or cars by the railroad company upon delivery
extend the service contracted for without to the terminal company.
But that the change of pay, and to discontinue the entire
service whenever the public interests, in his terminal company owed a similar duty to its
judgment, require it. employees, and neglected to perform the
2. A change of service under a mail contract same, to the injury of an employee has been
by directing the carrying of the mails to and established by the decision of the supreme from street cars at certain street crossings is court of Nebraska, already referred to.
fairly within the power reserved by the con. The case then stands in this wise: The
tract in the Postmaster General to order,
without additional compensation, any addirailroad company and the terminal company
tional service caused by change of location of have been guilty of a like neglect of duty in postoflice, stations, or landings, or by the failing to properly inspect the car before establislıment of others than those existing at putting it in use by those who might be the time of the contract, or rendered necesinjured thereby. We do not perceive that,
sary, in his judgment, from any cause, and
to change the schedule, vary the routes, inbecause the duty of inspection was first re
·crease, decrease, or extend the service withquired from the railroad company, that the out change of pay. case is thereby brought within the class 3.
A contractor for carrying the mails is not which hold the one primarily responsible, as entitled to extra compensation for services the real cause of the injury, liable to an
outside the terms of his contract which were other less culpable, who may have been held
performed in compliance with the unauthor
ized demand of the local postmaster, where, to respond for damages for the injury, in
upon protest to the Postmaster General, the flicted. It is not like the case of the one contractor was promptly relieved from such who creates a nuisance in the public streets; services, and another contract was made for or who furnishes a defective dock; or the their performance. case of the gas company, where it created the condition of unsafety by its own wrong.
[No. 228.] ful act; or the case of the defective boiler, which blew out because it would not stand Argued December 7, 8, 1904. Decided Janthe pressure warranted by the manufac
uary 9, 1905. turer. In all these cases the wrongful act
PPEAL from the Court of Claims to re
a the injury resulted. The principal and mov- to recover for the alleged wrongful terminaing cause, resulting in the injury sustained, tion of certain mail contracts and for extra was the act of the first wrongdoer, and the services performed in connection therewith. other has been held liable to third persons 4ffirmed. for failing to discover or correct the defect See same case below, 38 Court of Claims, caused by the positive act of the other. 574.
In the present case the negligence of the parties has been of the same character. Statement by Mr. Justice Day: Both the railroad company and the ter- The appellant filed his petition in the court minal company failed, by proper inspection, of claims to recover for the alleged wrongful to discover the defective brake. The ter- termination of certain mail contracts in the minal company, because of its fault, has cities of Boston, Brooklyn, and Omaha; been held liable to one sustaining an injury and, also, for extra services performed in thereby. We do not think the case comes connection therewith. The court of claims, within that exceptional class which permits in disposing of the case, made separate findone wrongdoer who has been mulcted in ings of fact and conclusions of law. The damages to recover indemnity or contribu- findings of fact may be abridged for the tion from another.
purpose of this case, reference being made For the reasons stated, the question pro- for fuller details to the findings in the court pounded will be answered in the negative. of claims. 38 Ct. Cl. 574. In pursuance of
unsafe or dangerous condition from which A view a judgment dismissing a am petition
an advertisement for proposals for trans- Boston, against his protest. The contractor porting the mails,—"covered regulation wa- did not protest to the Postmaster General gon, mail, messenger, and mail station serv- or any officer of the Postoffice Department ice,"—the appellant entered into contracts until August 14, 1894. Whereupon the for four years each for the cities of Boston Postmaster General dispensed with the servand Brooklyn, and two years for the city ice by the appellant, and entered into a conof Omaha. The Boston and Brooklyn contract with another contractor to perform the tracts began on July 1, 1893, and the service. Omaha contract on July 1, 1894. Compen- Under the Brooklyn contract, which consation for the Boston contract was at the tained specifications as to the places berate of $49,516 per annum; for the Brook-tween which the mail had to be carried durlyn contract, $18,934 per annum; and for ing the term of the contract, the contractor the Omaha contract at $3,780 per annum. was required to perform service between the During the terms of the Boston and Brook- Brooklyn postoffice and the mail routes eslyn contracts the Postmaster General deter- tablished on the street-car lines, and bemined to carry certain of the mails within tween the motor routes and the mail stathe district contracted for on electric street- tions. Under the Omaha contract appellant railway lines. In both cases the appellant was required, in addition to the places spewas offered the privilege of continuing the cifically named in the contract, to carry the contract for the reduced service, but refused mail to and from street cars of the Omaha to do so in each case. The Postmaster Gen- Street Railway at its crossings. It also aperal terminated the Boston and Brooklyn pears that under the three contracts the contracts, above referred to, the former on new service required, in lieu of the service February 1, 1896, the latter on March 1, specified in the contract, was much less in 1896, acting, as he avers, under the author- mileage required than was the service stipity vested in him by law and the contract ulated by the original contract. The court between the parties, but not because of any of claims dismissed the petition (38 Ct. Cl. negligence or default on the part of the 574), and the claimant appeals to this contractor. He afterwards relet the same court. service, as thus reduced, to another contractor, for the remaining period of the
Mr. A. A. Hoehling, Jr., for appellant. contract of the seventeen months of the
Mr. Joseph Stewart and Assistant At. Boston contract, at the compensation of $37,000 per annum. The difference between torney General Pradt for appellee. the contract price and the amount it would cost the appellant to furnish the service in Mr. Justice Day delivered the opinion of Boston during said seventeen months would the court: be $18,884.14. The service of the Brooklyn
From the foregoing statement of facts it is contract for the remaining period of sixteen evident that the case resolves itself into months was let to another contractor at a three propositions: (1) Can the appellant compensation of $9,720 per annum. The recover for the alleged wrongful terminacourt did not find the amount of the loss tion of his contracts by the Postmaster Gento the appellant by reason of the termina-eral? (2) Under the contracts were the tion of this contract. The contracts con
The contracts con- services performed in carrying mails from tained certain stipulations, as set forth in street cars, at the places designated, extra the opinion.
services, for which compensation outside of The contracts covered certain specified the contract should be awarded ?
(3) Unstations, landings, and mail stations from der the Boston contract did the service rewhich the contractor was required to carry quired in carrying the mails to and from the mail, and during the terms of such con- Brookline constitute extra service, for tracts he was required to perform certain which compensation should be awarded ? services, which he alleges to be extra serv- To determine the first proposition it is esices, and for which he was entitled to extra sential to have in mind certain provisions of compensation,-in the Boston contract, car- the statute, the preliminary notice to bidrying the mails from the general postoffice, ders, and, most important of all, the terms in the city of Boston, to the stopping places of the contract itself. In the notice to bidof the street-car lines of the railway com- ders it is said: pany from May 1, 1895, until February 1, “There will be no diminution of compen1896. Also, carrying the mails between the sation for partial discontinuance of service Back Bay postoffice and the Brookline of- or increase of compensation for new, addifice, a distance of from 21 to 3 miles, which tional, or changed service that may be orservices were not included in the terms of dered during the contract term; but the the contract, but which he was required to Postmaster General may discontinue the perform by the postmaster of the city of entire service on any route whenever the public interest, in his judgment, shall re- character of service for a part of the field quire such discontinuance, he allowing, as theretofore covered by the contract. In full indemnity to the contractor, one other words, it is contended that the total month's extra pay.”
discontinuance of service, which only can In the contract it is stipulated :
terminate the contract, must not leave any "It is hereby stipulated and agreed by service to be performed in the district covthe said contractor and his sureties that the ered. Postmaster General may change the sched- We cannot accede to this narrow conule and termini of the route, vary the struction of the powers given the Postmasroutes, increase, decrease, or extend the serv-ter General by the terms of this contract. ice thereon, without change of pay; and He is given general power to increase, dethat the Postmaster General may discontin- crease, or extend the service contracted for, ue the entire service whenever the public in- without change of pay. Furthermore, whenterest, in his judgment, shall require such ever the public interests in his judgment rediscontinuance; but for a total discontinu- quire it, he may discontinue the entire ance of service the contractor shall be al service. We think the advertisement and the lowed one month's extra pay as full indem- regulations under which this contract was nity."
made and the contract, as entered into, were Section 817, Postal Laws and Regula- intended to permit the Postmaster General, tions, 1887, provides:
when, in his judgment, the public interest “The Postmaster General may discontinue requires it, to terminate the contract, and, or curtail the service on any route, in whole if a service of a different character has beor in part, in order to place on the route su- come necessary in his opinion, to put an end perior service, or whenever the public inter to the former service upon the stipulated ests, in his judgnient, shall require such dis- indemnity of one month's extra pay being continuance or curtailment for any other given to the contractor. It is not reasoncause, he allowing as full indemnity to the able to hold that the power given to the contractor one month's extra pay on the Postmaster General for the public inamount or service dispensed with, and a pro terest can only be exercised when the rata compensation for the amount of serv- mail service in the district is to be enice retained and continued."
tirely abandoned. In the present case the Under the power supposed to be conferred contract was for mail service in three cities upon him by the terms of the contract, of importance, two of them among the made in pursuance of the preliminary ad- large cities of the country, and all of them vertisement and the authority vested in him thriving and growing communities. It is by the Postal Laws and Regulations, above hardly possible that the parties, in making cited, the Postmaster General, having de- this contract, could have had in view a time creased the service under the contract, by when the mail service would be dispensed reason of the introduction of the method of with. On the other hand, the condition carrying the mails on the street railways, which the contract contemplated, and which until the service required originally would in fact arose, made it desirable to extend to be much more than paid for by the compen- this district the use of street railways to sation agreed upon, discontinued the origi- carry the mails, with which to improve the nal service, and, the contractor declining to facilities for mail delivery. perform the work remaining at the lower The authority given to the Postmaster compensation, put an end to the contract by General is broad and comprehensive, requiran order of discontinuance, allowing the ing him to exercise his judgment to end the contractor one month's extra pay as full in- service, and thereby terminate the contract, demnity. It is contended by the appellant whenever the public interest shall demand that this contract, properly construed, while such a change. In that event the contractit permits the Postmaster General to make or takes the risk that the exercise of this changes in the schedule and termini of the authority might leave him only the indemroute, to reduce the same, to increase, de- nity stipulated for,-one month's extra pay. crease, or extend the service, without change we are not called upon to say in this case of pay, does not confer the right to cancel that the Postmaster General, merely for the the contract except upon abandoning the en- purpose of reletting the contract at a lower tire service, which may be done with the al rate, may advertise and relet precisely the lowance of one month's extra pay to the same service for the purpose of making a contractor. But, it is insisted, so long as more favorable contract for the government, any part of the service remains to be per- no change having arisen in the situation exformed, it is not within the power of the cept the desire for a better bargain. And Postmaster General to put an end to the it may readily be conceived that, in some in. service of the contractor, and relet a part stances, there may be such a diminution of of it to another, substituting a different the service contracted for in the district, by of power.
reason of the substitution of new and im- section applies more particularly to star proved methods, as will render the compen- route and steamboat service, but the provi. sation agreed upon altogether disproporsions of the law are broad and comprehentionate to the services left to be rendered, sive, and not limited by the terms of the act and thereby invoking the authority of the to such specific service, but the power is Postinaster General to exercise the power given the Postmaster General whenever, in reserved to him to terminate the contract. his judgment, the public interest shall reIn the present case the findings of fact do quire, to discontinue or curtail the same, not disclose a case of the arbitrary exercise giving the contractor as indemnity one
A new means of service within month's extra pay. Speaking of the action the district by means of the street railway authorized under § 263 of the former rules was deemed by the Postmaster General to and regulations, this court, in Garfielde v. be required in the public interest. This ne United States, 93 U. S. 242-246, 23 L. ed. cessitated the cutting down of the former 779, said: service to make way for the new, and the "There was reserved to the Postmaster Postmaster General exercised the power giv- General the power to annul the contract en him under the contract, and put an end when his judgment advised that it should to the service and the contract. If the con- be done, and the compensation to the contention of the appellant is to be sustained, tractor was specified. An indemnity agreed while in the present case the street-railway upon as the amount to be paid for canceling service was not a large proportion of the a contract must, we think, afford the meastotal service required, the same argument, ure of damages for illegally refusing to carried to its legitimate conclusion, would award it." prevent the Postmaster General from tak- And upon similar contract stipulations ing advantage of this stipulation, although this court, in Chicago & N. W. R. Co. v. it was manifest that a large proportion, United States, 104 U. S. 680, 684, 26 L. ed. maybe practically all, of the service could 891, 892, said: be better rendered to the public by substi- "It is true that, under this reservation, tuting the new method, leaving only, a small the Postmaster General would be authorized part of the old service to be rendered. In to discontinue the entire service contemplatthis contingency, as construed by the ap-ed by the contract, and the practical effect pellant, the contract price must still be of that would be to terminate the contract paid, notwithstanding the changed condi- itself on making the indemnity specified." tions. These contracts were made for a
As to the other claim for extra services: term of years,—two for four years and one in the stipulation of the contracts, it apfor two years. It is insisted that the con-pears that the contractor was required to struction contended for by the government perform all new or additional or changed practically puts the contractor into the covered wagon mail station service that the power of the Postmaster General, and makes Postmaster General should order, without the stipulation, in substance, an agreement additional compensation, whether caused by upon his part to do whatever that officer change of location of postoffice, stations, or may require. The obvious answer to this landings, or by the establishment of others contention is that the contractor is not than those existing at the time of the conobliged to carry on the contract when the tract, or rendered necessary in the judgPostmaster General elects to cancel it. ment of the Postmaster General from any Such action puts an end to the obligations cause, and that officer has the right to of the contractor as well as the government. change the schedule, vary the routes, inUnder the postal regulations, it appears crease, decrease, or extend the service withthat the contractor is given the opportunity out change of pay. It is insisted that these to perform the reduced service at a lower stipulations, properly construed, permit the rate. This he was not obliged to do, and, in Postmaster General to require only addithe present case, declined to undertake. Our tional service of the same kind as that stipconclusion is that, acting in good faith, of ulated for, and that the carrying of the which there is every presumption in favor mails from street cars, where the same of the conduct of so important a department might be ordered to be met at crossings, was of the government, the Postmaster General a new and different kind of service, and was may, as was done in this case, discontinue not a change caused by a different location the service, and thereby put an end to the of a postoffice, station, or landing within contract, when the public interest, of which the meaning of the contract. But we think he is the sole judge, authorizes such action. this is too narrow a construction of the
This view of the contract renders it un terms of the agreement. Strictly speaking, necessary to consider at length the provi- the carrying of the mails from the street sions of $ 817 of the Postal Laws and Regu- cars at the crossings is not taking them lations, above quoted. It is urged that this from
from the stations, but it practically