APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE CLARKE delivered the opinion of the court.
This is an appeal from a judgment of the Court of Claims in favor of the United States.
On January 17, 1895, appellant's decedent, William Weighel, entered into a written contract with the United States for the transportation of mail on route No. 235,001, "being covered regulation wagon mail messenger, transfer, and mail station service," between designated points in the City of Chicago, Illinois, for the term of four years, commencing on July 1, 1895.
On February 6, 1895, Ezra J. Travis contracted in writing with Weighel to perform the entire contract for somewhat less than the latter was to receive from the Government. The Postmaster at Chicago and the Postmaster General were advised of this subletting, and for the entire four years during which Travis performed the contract he was recognized by the Post Office Department as a subcontractor, performing Weighel's obligations under the contract. The full amount stipulated for in the contract was paid by the Government, all payments being made to Weighel, who made settlement with Travis.
At the time Weighel bid on the route no mail service was being performed by contractors in Chicago to and from street cars, and the advertisement of the Post Office Department for proposals did not mention such service,
but, on the contrary, before he made his bid, Weighel was notified by the Postmaster at Chicago, who was authorized by the Postmaster General to give information to bidders, that the successful bidder would not be required to perform such service.
On November 14, 1895, about four months after Travis, as subcontractor, entered upon the performance of the contract, and again on May 12, 1896, and on February 27, 1897, and May 3, 1897, the Postmaster General issued orders requiring the contractor to perform specified mail service to and from street cars in Chicago. The Government claimed that this new service was within the scope of Weighel's contract, but he claimed that it was not, and performing it under protest he notified the Government that compensation therefor would be demanded. Travis performed all of the extra service for Weighel and the Court of Claims found that he was obliged to employ twenty-four men, for double vans and seven single wagons to perform the service which had previously been performed by four drivers and four single wagons, and that the reasonable value of the extra service imposed by the orders of the Postmaster General was $52,327.60.
This suit, brought by Weighel to recover the fair value of the extra service rendered, has since his death been prosecuted by his executor.
The Court of Claims decided that because Travis performed all of the extra service with was the subject of the suit, Weighel had no interest in the subject-matter of it and dismissed the petition.
We agree with the lower court that the contention of the Government cannot be allowed, that the extra service rendered was within the paragraph of the contract providing that the contractor is "to perform all new of additional or changed covered regulation wagon mail messenger, transfer, and mail station ...