US SUPREME COURT DECISIONS

In March, 1878, P. contracted to carry the mails three times a week for four years on route 36,107, commencing July 1, 1878, and entered on the performance of his contract. On the 5th day of the following December, in consequence of false and fraudulent sworn statements made by him concerning the number of horses and men that would be required to expedite the service by reducing the time, a large additional compensation was allowed him by the Postmaster General for that purpose. On the 13th of the same December he sublet his contract to S. with the consent of the Department, and the service was from that time performed by S. Further increased allowances, based on like fraudulent statements by P. were made in January and July, 1879, and assented to by P. and S. The amount so fraudulently received during the term of service was $99,556.20. The government sued P. and S. to recover back that sum. In the first count, the above facts were set forth and it was alleged that the false statements were designed to mislead and did mislead the Post Office Department. A second count was for money had and received. A third count set forth the same facts and averred that the money had been paid in mistake of fact, and had been received contrary to the provisions of Rev.Stat. § 3961. No process was served upon P., and he did not appear.

S. appeared and demurred, and the demurrer was sustained. Each was cited in the writ of error, and service acknowledged by the attorney for both. Held:

(1) That the statements regarding the "horses and men" required for the expedited service came within the statement as to "stock and carriers" required therefor, as provided in Rev.Stat. § 3961.

(2) That P. and S. were bound by these statements and were estopped from asserting that it was not intended thereby to bring the contract within the statute.

(3) That the demurrer admitted the fact that the increase had been allowed on the basis of the false representation.

(4) That the court below erred in sustaining the demurrer to the third count.

(5) That the defendants having each participated in the transaction, were properly sued jointly.

(6) That the demurrer should have been overruled.

The case is stated in the opinion. chanrobles.com-red

Page 157 U. S. 114