Opinion of the Court.

such excessive payments in case of fraud in the transaction leading to their disbursement. But if there were no actual fraud in these proceedings, it is clear from the allegations of the complaint that the defendants received the moneys in question without consideration, for, whatever may be the meaning of the term "stock and carriers," the original contract itself and the sworn statement on the basis of which it was amended mention only "men and horses" as the means of performing the service of carrying the mail, and it is shown by the allegations of the complaint that to perform the expedited schedule either three times per week or seven times per week there were never required nor used "more than 34 men and 100 horses, being 14 men and 100 horses less than the said Piatt alleged in his said sworn statement were necessary for performing said expedited service three times per week." The provisions of section 4057 of the Revised Statutes are applicable to this very state of case. That section provides that "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."

We are of opinion that the court below erred in sustaining the demurrer to the third count.

Very little need be said upon the question of misjoinder, constituting the second ground of demurrer.

Section 3963 of the Revised Statutes provides that "no contractor for transporting the mail within or between the United States and any foreign country shall assign or transfer his contract, and all such assignments or transfers shall be

Opinion of the Court.

null and void." If the alleged subletting of the contract to Salisbury be regarded merely as an arrangement between the defendants, still Piatt was liable for the performance of both the original and the amended contract, during the whole period of service. The claim of the plaintiff is confined to the period between December 16, 1878, and August 21, 1882, during which time the expedited schedule was in force. So there is nothing in the contention of improper joinder in reference to matters previous to December 13, 1878. As to matters subsequent thereto, the joinder was proper, for both defendants were parties to the fraudulent transaction whereby the plaintiff was induced to make the increased allowance of compensation referred to; and it is specifically alleged in the third count of the complaint that the sworn statement of Piatt was presented "by and on behalf of both the said defendants, Piatt and Salisbury, to the Postmaster General." The complaint further alleges that by means of these false representation's and "by means of false and fraudulent vouchers presented to the said Post Office Department of the United States, the said defendants, George H. Piatt and Monroe Salisbury, were paid by and received from this plaintiff a larger sum of money than they were entitled to receive." It thus appears that each of the defendants participated in this transaction, and it was proper to sue them as jointly and severally liable.

There is but one cause of action, and that for the excessive payments made between December 16, 1878, and August 21, 1882. Piatt was contractor during this period, and the service was performed for him by Salisbury, to whom was paid the compensation agreed upon in the amended contract. The single cause of action then is for the recovery of such amount as was in excess of the sum allowed by law. Piatt and Salisbury according to the facts admitted by the demurrer, are equally concerned in the fraud perpetrated upon the government, one by presenting in behalf of both a sworn statement containing false and fraudulent allegations whereby the Postmaster General was induced to amend the original contract, allowing increased compensation, the other by present

Opinion of the Court.

ing for payment false and fraudulent vouchers comporting therewith, upon the faith of which the money was paid. They are then jointly and severally bound to refund the sum so paid and received in violation of section 3961 of the Revised Statutes.

Assuming, as we must, on this hearing, the truth of the facts set forth in the complaint, we are of opinion that the demurrer should have been overruled.

As Piatt was not in the court below, it was error to have sustained the demurrer and dismissed the action as to him. The judgment is reversed and the cause remanded for further proceedings in conformity to this opinion.

Reversed.

UNITED STATES v. SALISBURY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 167. Submitted January 28, 1895. - Decided March 4, 1895.

United States v. Piatt and Salisbury, ante, p. 113, followed.

THE case is stated in the opinion.

Mr. Solicitor General for plaintiffs in error.

Mr. Monroe Salisbury in person for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case differs very little from the one just determined. The complaint is in three counts. The first count alleges in substance that on March 15, 1878, one Thomas A. McDevitt contracted in writing with the United States, through the Postmaster General, to carry the mail on the route then known as No. 36,115, six times a week for the period of four years from July 1, 1878, for a consideration of $6425, per

Opinion of the Court.

annum, between Helena, Montana, by way of Hot Springs and Black Foot City, Toll Gate, Deer Lodge, Yamhill, Pioneer, New Chicago, and Bear's Mouth and Missoula and back. In pursuance of this contract McDevitt entered upon and continued the performance of the service until October 1, 1878, at which date he sublet his contract to Monroe Salisbury, the defendant, who performed the service during the remainder of the said contract term, to wit, until June 30, 1882. On July 1, 1879, the subcontract was duly recognized by the Postmaster General, and thenceforth such sums as were due and payable by virtue of the original contract, as afterwards amended and changed in the manner hereinafter set forth, were paid to said Salisbury.

For the purpose of expediting the service between Helena and Missoula and the intermediate places mentioned, the Postmaster General and McDevitt agreed, on December 24, 1878, to shorten the schedule of departures and arrivals on said route from January 1, 1879, and to increase the service. Accordingly, by order of the Postmaster General, the running time upon the route was reduced from 36 hours in summer and 59 in winter to 30 hours in summer and 45 hours in winter, in consideration of which an additional sum was allowed of $9637.50 per annum, in supposed accordance with the provisions of section 3961 of the Revised Statutes of the United States. By said order the service was also increased one trip per week from January 1, 1879, for which an additional annual allowance of $2671.08 was made such allowance being computed pro rata upon the basis of the compensation in the original contract as increased by the additional allowance for increase of speed. These changes were agreed to by McDevitt.

After the execution of the subcontract between McDevitt and Salisbury, whereby all moneys thereafter due the former under the original contract were to be paid to the latter, McDevitt, in his own name, but in the interest and at the instigation of Salisbury, did, by means of certain false and fraudulent representations set forth in a sworn statement dated December 18, 1878, represent to the Postmaster General that, in order to perform the service upon the then existing schedule

Opinion of the Court.

it required 6 men and 24 horses, and to perform the proposed expedited service would require 15 men and 60 horses, which representations were wholly false and fraudulent in that neither McDevitt nor Salisbury ever required or used in carrying the mail upon the expedited schedule any greater number of men or horses than McDevitt alleged in his sworn statement were required for or actually used in performing the service upon the original schedule. And those false representations were designed to mislead and did mislead the Postmaster General.

By means of such fraudulent statements by McDevitt, and by means of fraudulent vouchers presented to the Post Office Department, Salisbury was paid by and received from the United States a larger sum of money than he was entitled to for the performance of such mail service under the amended contract. The sum so received by him in excess of what he was legally entitled to receive between July 1, 1879, (the date on which the subcontract was first recognized by the Post Office Department,) and July 1, 1882, was $30,690.16. The original contract between the plaintiff and McDevitt and the subcontract between McDevitt and Salisbury were exhibited with the complaint and made part thereof.

Judgment was demanded for this sum with interest from July 31, 1882, and costs.

The second count is the common law count for money had and received.

The third count sets forth the same facts as in the first count, and alleges that by reason thereof the plaintiff's officers were induced to pay the moneys aforesaid from July 1, 1879, to July 31, 1882, amounting in the aggregate to $30,690.16, which sum was paid by the plaintiff's officers as above set forth, in mistake of fact, and was received by said defendant contrary to the provisions of section 3961 of the Revised Statutes of the United States.

In this case the subcontractor only was sued, while in the former case both the principal contractor and the subcontractor were sued.

The present case is controlled by the decision just rendered in United States v. Piatt, ante, 113.