of its daily issue, destined for points on mail transfer clerk took the sacks of the United States postal route between papers, ascertained the net weight, and Bristol and Chattanooga, or on other caused them to be transported as secondpostal routes connecting therewith, upon class mail matter upon the same train. a Southern Railway train leaving Knox- The net weight was reported to the postville at 4 A. M. daily. The mail was de- master, and he charged to claimant's acspatched in wagons from the main post- count the proper second-class postage office at Knoxville to the office of a mail thereon. The system adopted was that transfer clerk at the railway station, the claimant made a deposit with the postwagons being operated by persons having master to cover postage to accrue, and contracts for the purpose with the United renewed the deposit from time to time, States postal authorities. For claimant's as it was reduced by charges against it. convenience, the postoffice authorities con- During the year 1907 the express comsented that its newspapers might be pany's office was removed to a distance weighed, for mailing, at the railway sta- of about 150 yards from the transfer tion instead of at the postoffice; claimant clerk's office, and about a year after this furnishing scales for the purpose. The mail wagons, under an arrangement between claimant and the contractor, called at claimant's place of business and carried the newspapers thence to the station. For this service claimant compensated the contractor or the driver. While this arrangement was in effect, and in the fall of the year 1906, claimant concluded to transport a part of the newspapers by express instead of mail, the express charges upon large lots being one half the postal charge for transporting newspapers as second-class mail. It notified the express company of this purpose, and requested the express agent to be on the watch. Thereafter [583] it caused certain copies of its newspaper intended for newsdealers therefore sent by mail-to be wrapped in bundles and labeled "Express or baggage," with directions for throwing them off the train at the several destinations. Other copies of the paper, intended for subscribers and for newsdealers, were placed, properly addressed, in mail sacks. The method of transporting the papers to the railway station continued as before, those intended to go by express and those contained in mail sacks being carried upon the same wagon, and the driver instructed to take them to the railway station, which he did, depositing bundles and sacks on the platform where all mail was deposited. In the fall of 1906, and for about a year thereafter, the express company's office The government insists that this court adjoined that of the mail transfer clerk, is without jurisdiction to entertain the the doors of the two opening upon the appeal, upon the ground that the amount same platform. Claimant's representative in controversy is less than the $3,000 had notified the express company's agent specified in the applicable provision, § of the purpose to send certain of the 242 of the Judicial Code (Act of March papers by express, and, pursuant to that 3, 1911, chap. 231, 36 Stat. at L. 1087, notice, until about October, 1908, a porter 1157, Comp. Stat. §§ 968, 1219, 4 Fed. from the express agent's office went to Stat. Anno. 2d ed. p. 815, 5 Fed. Stat. the platform, took the bundles of news- Anno. 2d ed. p. 887). It is said that, papers labeled as mentioned, and caused viewing the claim in the most favorable them to be transported by express. Dur- light, and assuming a mistake was made ing the same period the United States entitling claimant to recover, the amount

the express messenger or porter ceased calling at the mail platform for the bundles of papers labeled for transportation by express. Why he did so does [584] not definitely appear. Thereafter and down to March 31, 1913, claimant's newspapers, whether in sacks or in bundles, were alike treated as mail matter by the United States mail transfer clerk, who weighed them all and reported the net weights to the postmaster, and the bundles and sacks were transported to their respective destinations as second-class mail matter. The charge appropriate for such mail matter was regularly made against claimant's deposit, and paid by claimant during the entire period. In the spring of 1913 claimant's business manager, having his attention called to the fact that the express bills were small, discovered upon investigation that the bundles of papers labeled "Express" were being transported as second-class mail matter; and the present suit followed. During the period referred to approximately 358,442 pounds of newspapers were transported by the United States mail that were labeled "Express," and had been intended by claimant to be transported by express. Claimant paid thereon the regular secondclass mail matter rate of 1 cent per pound, aggregating $3,584.42. The transportation of the same matter by express would have cost claimant $1,792.21.

recoverable could not exceed the difference, 194 U. S. 315, 323, 48 L. ed. 994, 996, between what was paid as postage and 24 Sup. Ct. Rep. 727; Tempel v. United what would have been paid had the news- States, 248 U. S. 121, 129, 63 L. ed. 162, papers been sent by express, that is to 164, 39 Sup. Ct. Rep. 56; Ball Engineersay, $1,792.21. But, while in its original ing Co. v. J. C. White & Co. 250 U. S. petition claimant prayed recovery for 46, 57, 63 L. ed. 835, 841, 39 Sup. Ct. Rep. only the latter amount, in an amendment 393. made by leave of the court it sought a return of the entire $3,584.42, on the [585] ground that there was a failure of consideration, and it was entitled to a return of the whole sum, as paid by mistake. The amount in controversy is to be determined by the amended rather than the original petition (Washer v. Bullitt County, 110 U. S. 558, 561, 562, JOHN LEWIS SMITH and Edwin L. Wil

28 L. ed. 249-251, 4 Sup. Ct. Rep. 249); and since there is nothing in the nature of the case to prevent a recovery of the entire amount, were claimant's view of the law sustained, the amount claimed is the amount in controversy within the meaning of the jurisdictional act, notwithstanding there may be a defense to a part that would not extend to the entire claim. Barry v. Edmunds, 116 U. S. 550, 560, 561, 29 L. ed. 729, 732, 733, 6 Sup. Ct. Rep. 501; Schunk v. Moline, M. & S. Co. 147 U. S. 500, 504, 505, 37 L. ed. 255, 258, 13 Sup. Ct. Rep. 416; Vance v. W. A. Vandercook Co. 170 U. S. 468, 472, 42 L. ed. 1111, 1112, 18 Sup. Ct. Rep. 645; Smithers v. Smith, 204 U. S. 632, 642, 643, 51 L. ed. 656, 660, 661, 27 Sup. Ct. Rep. 297.

Judgment affirmed.

[586] E. HILTON JACKSON, Receiver of the First Co-operative Building Association of Georgetown, District of Columbia, Petitioner.

V.

son.

(See S. C. Reporter's ed. 586-589.)

Receivers

fiduciary relation - purchase at foreclosure sale profits joint and several liability of receiver's associates.

An agreement by the receiver of a building association with his attorney and a third person to join in the purchase of property at a public sale by the trustee under a deed of trust securing a debt to the association, in case such third person should become the successful bidder, is such a violation of his obligations as a fiduciary as renders him and his associates jointly and severally liable to the trust estate for although the estate may not have been inall the profits resulting from the purchase, jured thereby, the sale having been fairly conducted, with competitive bidding, and without improper influence to prevent competition or to close competitive bidding, or to bring about a sale to the purchaser in preference to anyone else.

Upon the merits, we concur in the opinion of the court of claims that there is no legal basis for a recovery. The money was not paid under any such mistake as to render it inequitable for the United States to retain it. The bundles of newspapers actually were transported as mail by the government, claimant being charged by the postmaster the amount Argued December 17, 1920. fixed by law for the service rendered, and paying it without protest. No error is

For other cases, see Receivers. II. b: Joint

Creditors and Debtors, in Digest Sup. Ct. 1908.]

[No. 130.]

uary 24, 1921.

Decided Jan

N WRIT of Certiorari to the Court

shown to have been made in the weights of Appeals of the District of Colum

or in the rate charged. So far as any "mistake" appears from the findings, it was that of claimant's agents in causing or permitting the papers to go by mail instead of by express, as claimant intended. There is no finding attributing negligence or other fault to the mail transfer clerk; but if there were such, and claimant's loss were attributable to it, this would not form a ground for recovery, since the United States has not consented to be sued in the court of claims for the torts of its officers or agents. Bigby v. United States, 188 U. S. 400, 401-407, 47 L. ed. 519, 522, 523, 23 Sup. Ct. Rep. 468; J. Ribas y Hijo v. United States,

bia to review a decree which reversed a decree of the Supreme Court of the District, holding the associates of a receiver liable to the estate for the profits arising out of an enterprise undertaken by them which was antagonistic to the interests

Note.-On powers and duties of receivers-see notes to Davis v. Gray, 21 L. ed. U. S. 447, and Shepherd v. Pepper, 33 L. ed. U. S. 706.

As to dealings of trustee with trust estate see notes to Wormley v. Wormley, 5 L. ed. U. S. 651, and Massie v. Watts, 3 L. ed. U. S. 181.

Merryman v. Blount, 79 Ark. 1, 94 S. W., adequacy of price, an inference of fraud,

This whole proceeding in the trial court had no solid foundation in law, principles, or morals; and the superstructure was flimsy. It rested wholly on an atmosphere of suspicion. The attempt was made, notwithstanding a voluntary denial of any imputation of actual fraud, to hold these respondents liable for having gained a profit by a breach of duty, a profit made inferentially because of supposed inadequacy of price, for, I take it, the receiver would not have set up a constructive trust if the speculation of the purchasers Ct. Rep. 265. had proved unprofitable. It is an at- One of the errors of the trial court tempt to build up, out of supposed in- I was in holding these respondents at all

liable after the decree against Ambrose. | 171, 178, 40 L. ed. 383, 385, 16 Sup. Ct.

23 Cyc. 812; Minor v. Mechanics Bank, 1 Pet. 46, 73, 7 L. ed. 47, 59; Smith v. Rines, 2 Sumn. 338, Fed. Cas. No. 13,100; Dicey, Parties, 234; Sessions v. Johnson, 95 U. S. 347, 24 L. ed. 596; Pelham v. Pace, Hempst. 223, Fed. Cas. No. 10,911a; United States v. Leffler, 11 Pet. 86, 97, 9 L. ed. 642, 646, 647; 23 Cyc. 1213; 39 Cyc. 530-534, 536; Carter v. Gibson, 61 Neb. 207, 52 L.R.A. 468, 85 N. W. 45.

Rep. 258; Scott v. Neely, 140 U. S. 106, 110, 35 L. ed. 358, 360, 11 Sup. Ct. Rep. 712; Whitehead v. Shattuck, 138 U. S. 146, 151, 34 L. ed. 873, 874, 11 Sup. Ct. Rep. 276; Buzard v. Houston, 119 U. S. 347, 352, 30 L. ed. 451, 454, 7 Sup. Ct. Rep. 249; Alger v. Anderson, 92 Fed. 696; New York Guaranty & Í. Co. v. Memphis Water Co. 107 U. S. 205, 214, 27 L. ed. 484, 488, 2 Sup. Ct. Rep. 279; Greenwood, A. & W. R. Co. v. Strang, The proceeding was multifarious. 77 Fed. 498; Russell v. Clark, 7 Cranch, Bank of Metropolis v. Guttschlick, 14 69, 89, 3 L. ed. 271, 279; Walker v. Pet. 19, 29, 10 L. ed. 335, 340; Mutual Brown, 58 Fed. 23; United States v. F. Ins. Co. v. Barker, 17 App. D. C. 218; Bitter Root Development Co. 200 U. S. Anderson v. White, 2 App. D. C. 417; 27 451, 471, 50 L. ed. 550, 560, 26 Sup. Ct. Cyc. 968, 1148; Walker v. Powers, 104 Rep. 318; Phoenix Mut. L. Ins. Co. v. U. S. 245, 251, 26 L. ed. 729; Williams Bailey, 13 Wall. 616, 623, 20 L. ed. 501, v. Jackson, 107 U. S. 478, 484, 27 L. ed. 503; Such v. Bank of State, 127 Fed. 529, 531, 2 Sup. Ct. Rep. 814; Holton v. 450; White v. Boyce, 21 Fed. 228; Wallace, 66 Fed. 409; Security Sav. & Banque Franco-Egyptienne v. Brown, L. Asso. v. Buchanan, 14 C. C. A. 97, 34 Fed. 162; Security Sav. & L. Asso. v. 31 U. S. App. 244, 66 Fed. 799; Curry v. Buchanan, 14 C. C. A. 97, 31 U. S. App. McCauley, 11 Fed. 365; Cherokee Na- 244, 66 Fed. 799; Curriden v. Middletion v. Southern Kansas R. Co. 135 U. ton, 37 App. D. C. 568; Tyler v. Moses, S. 641, 651, 34 L. ed. 295, 300, 10 Sup. 13 App. D. C. 442; Johnson v. Swanke, Ct. Rep. 965; Scott v. Armstrong, 146 5 L.R.A. (N.S.) 1048 and note, 128 Wis. U. S. 499, 512, 36 L. ed. 1059, 1064, 13 68, 107 N. W. 481, 8 Ann. Cas. 544; Sup. Ct. Rep. 148; Cates v. Allen, 149 Gaines v. Miller, 111 U. S. 395, 398, 28 U. S. 451, 456, 37 L. ed. 804, 807, 13 L. ed. 466, 468, 4 Sup. Ct. Rep. 426; Sup. Ct. Rep. 883, 977; Haines v. Car- Nash v. Ingalls, 41 C. C. A. 545, 101 Fed. penter, 1 Woods, 267, Fed. Cas. No. 5,- 645; Sigua Iron Co. v. Clark, 77 Fed. 905; Bay City Bridge Co. v. Van Etten, 496; George v. Ford, 36 App. D. C. 330; 36 Mich. 210; Behlow v. Fischer, 102 Prescott v. Pfeiffer, 57 Mich. 21, 23 N. Cal. 208, 36 Pac. 509; O'Bear Jewelry W. 477; Bay City Bridge Co. v. Van Co. v. Volfer, 106 Ala. 222, 28 L.R.A. Etten, 36 Mich. 210; Albright v. Mercer, 707, 54 Am. St. Rep. 31, 17 So. 525; 14 Pa. Super. Ct. 63; McClane v. ShepSheilds v. Barrow, 15 How. 130, 143, 15 herd, 21 N. J. Eq. 76; German American L. ed. 158, 161; Warner v. Godfrey, 186 Seminary v. Kiefer, 43 Mich. 105, 4 N. U. S. 365, 377, 46 L. ed. 1203, 1208, 22 | W. 636; Roberts v. Ely, 113 N. Y. 128, Sup. Ct. Rep. 852; Root v. Woolworth, 20 N. E. 606: Planters Bank v. Farmers 150 U. S. 401, 410, 37 L. ed. 1123, 1125, & M. Bank, 8 Gill & J. 449; United 1126, 14 Sup. Ct. Rep. 136; 16 Cyc. 357, States v. State Nat. Bank, 96 U. S. 30, 361; 31 Cyc. 503; Smith v. Woolfolk, 24 L. ed. 647; Mills v. Knapp, 39 Fed. 115 U. S. 143, 148, 2 L. ed. 357, 359, 5 595; Shields v. McCandlish, 73 Fed. 318; Sup. Ct. Rep. 1177; New York, P. & Angle v. Chicago, St. P. M. & O. R. Co. O. R. Co. v. New York, L. E. & W. R. 151 U. S. 1, 26, 38 L. ed. 55, 67, 14 Sup. Co. 58 Fed. 268; Wilder v. New Orleans, Ct. Rep. 240; England v. Russell, 71 Fed. 31 C. C. A. 249, 58 U. S. App. 109, 87 818; Dewey Hotel Co. v. United States Fed. 843; 34 Cyc. 236, 238; 34 Cyc. 190, Electric Lighting Co. 17 App. D. C. 365; 193, 388, 389; Youtsey v. Hoffman, 108 Hayden v. Thompson, 17 C. C. A. 592, Fed. 693; State Bank v. First Nat. 36 U. S. App. 361, 71 Fed. 60; PechBank, 34 N. J. Eq. 450; Wood v. New stein v. Smith, 14 App. D. C. 30; Hoey York & N. E. R. Co. 61 Fed. 236; Mil- v. Coleman, 46 Fed. 221; Guarantee Co. waukee & M. R. Co. v. Milwaukee & of N. A. v. Mechanics' Sav. Bank & T. St. P. R. Co. 6 Wall. 742, 18 L. ed. 856; Co. 26 C. C. A. 146, 47 U. S. App. 91, Washington, A. & G. R. Co. v. Bradley 80 Fed. 766; Tyler v. Savage, 143 U. S. (Washington, A. & G. R. Co. v. Washing- 79, 94, 36 L. ed. 82, 89, 12 Sup. Ct. ton) 10 Wall. 299, 301, 19 L. ed. 894, Rep. 340; Hipp v. Babin, 19 How. 271, 895. 278, 15 L. ed. 633, 635; Sullivan v. The receiver had an adequate remedy Portland & K. R. Co. 94 U. S. 806, 24 at law, and sought no equitable relief. L. ed. 324; Curry v. McCauley, 11 Fed. Townsend v. Vanderwerker, 160 U. S. 1 370; Wylie v. Coxe, 15 How. 416, 420,