Opinion · Supreme Court of the United States

United States v. McCoy

193 U.S. 593

Type: Opinion
Court: Supreme Court of the United States
Jurisdiction: Federal
Date: 1904-04-04
Topic: general

Me. Justice White, after making the foregoing statement, delivered the opinion of the court. .The assignments of errors and arguments at bar present two questions for decision. First. Were the copies of telegrams sent by the postmaster at San Francisco to the Post Office Department admissible in evidence? And, second, if they were, did the certified copy of the account of McCoy as a failing contractor from the books of the Auditor for the Post Office Department, the telegrams from the postmaster at San Francisco and the finding of the Postmaster General that McCoy was a failing contractor, make out a prima facie case for the Government?

Citator

UpLaw has not yet analyzed United States v. McCoy. The absence of a flag is not a finding that it is good law.

Cited by: 21 opinions

UNITED STATESv. McCOY,193 U.S. 593(1904)

24 S.Ct. 528

UNITED STATESv. McCOY.

ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 148.

Submitted January 28, 1904.

Decided April 4, 1904.

Official reports and certificates made contemporaneously with the facts stated, and in the regular course of official duty, by an officer having personal knowledge of them, are admissible for the purpose of proving such facts. On the trial of an action brought by the United States against the sureties on a bond to secure the performance of a contract to carry mail, the Government makes aprima faciecase on producing a certified copy from the books of the Auditor for the Post Office Department of the contractor as a failing contractor, and showing the amount of his indebtedness, telegrams from the local postmaster to the Postmaster General to the effect that the contractor had abandoned the service, and the finding of the Postmaster General that the contractor was a failing contractor.

THIS suit was commenced by the Government to recover an amount

alleged to be due on a bond to secure the performance of a

contract to carry mail. The defendants were McCoy, the

Page 594

contractor and principal in the bond, and his sureties. The cause

was put at issue by a general denial and was tried in November,

1899. The Government prosecuted error from a judgment of non-suit

which was entered against it. The Circuit Court of Appeals for

the Ninth Circuit decided that the trial court was "right in

holding that the documents offered in evidence by the plaintiff

were legally insufficient to make out aprima faciecase for

damages on account of the alleged entire failure of McCoy to

perform the service provided in the contract." It was, however,

held that aprima facieright to recover the amount of a fine

of five dollars had been established. The judgment was,

therefore, reversed and the case remanded for a new trial.

104 F. 669. A second trial took place in May, 1901. At that

trial the case made by the Government was as follows: McCoy,

being the lowest bidder, was awarded a contract for carrying the

mails from July 1, 1890, to June 30, 1894, between the post

office at San Francisco and certain railroad stations and

steamboat landings, and executed the bond which was sued on. On

May 3, 1893, the postmaster at San Francisco telegraphed the Post

Office Department that, under a judgment rendered against McCoy,

the sheriff had seized the wagons used by him in executing his

contract, and would sell them on May 5; that the probable result

of this sale would be to render it impossible for McCoy to

continue to perform his contract, and that some temporary

arrangement would be necessary, and asking instructions in the

premises. Three days later, on May 8, the postmaster telegraphed

the department that the service had been absolutely abandoned by

McCoy, and that a temporary arrangement had been made to last

until the department could act. On the day after the receipt of

this telegram (May 9) the Post Office Department addressed a

letter to McCoy, care of Zevely and Finley, Washington, D.C.,

giving the substance of the two telegrams above referred to, and

asking if McCoy intended to carry out his contract. On May 17 the

department telegraphed the sureties on McCoy's bond, informing

them that

Page 595

McCoy had failed to perform his contract, and inquiring if they

would assume the service. On the same day the department by

telegram informed the postmaster at San Francisco that his action

in providing a temporary arrangement for the performance of the

service was approved. On May 18 a telegram was received by the

department from one of the sureties of McCoy, saying that he, the

surety, was unable to perform the contract, and requesting to be

relieved from all future liability on the bond, because his

signature thereto had been "improperly obtained." On the same day

(May 18) a finding was made by the Postmaster General that McCoy

was a failing contractor, this finding being evidenced by the

following certificate:

"State of California. No. 76,475.

"Regulation wagon service, San Francisco, San Francisco

County. Contractor, C.C. McCoy. Pay, $7,700.00.

"Whereas C.C. McCoy, contractor on this route under the

advertisement of September 16, 1889, has failed to perform the

service, he is hereby declared a failing contractor.

"W.S. BISSELL,

"Date, May 18, 1893.Postmaster General."

The department subsequently advertised for proposals for the

remaining period of McCoy's term, and the same was let to one

Popper, and a contract entered into with him on the subject.

Thereupon the Auditor of the Post Office Department stated the

account of McCoy as a failing contractor. That account charged on

the debit side the sum paid for temporary service from May 5 to

August 13, 1893, the date when the new contract was awarded, and

also the difference between the amount stipulated to be paid in

the McCoy contract and that which the Government had contracted

to pay Popper, the new contractor, from August 14, 1893, to June

30, 1894, when the McCoy contract would have terminated. The

account, moreover, stated a charge against McCoy of $5, the

amount of a fine which had been imposed on him by the department

during the third quarter of 1893. McCoy was credited

Page 596

with the whole sum which he would have earned had he performed

his obligations, the balance to the debit being the amount sued

for, $5,772.99. After the Government had shown the facts above

stated, it rested its case, and the defendants offered no

evidence whatever.

The Government then requested an instruction in its favor on

the ground that aprima faciecase of liability had been

proven. Exception was taken to the refusal of the court to give

this instruction.

The court charged the jury as follows:

"It will not be necessary for you to retire to consider this

case. You can render a verdict from your seats. This is an action

in which the Government sued to recover damages for breach of a

mail contractor's bond — breach of the contract. The action is

against the contractor and the sureties upon his bond. The

Government claims damages for the total abandonment of the

contract without having performed it, and as to that claim all

the evidence that has been offered on the part of the Government

is insufficient to prove that there was an abandonment, there

being no testimony of any witness having knowledge of the fact

that the contractor did fail. The evidence includes the statement

of account made up by the auditing department of the Government,

in which there appears to have been a fine of five dollars

imposed upon the contractor for a particular failure, and in

accordance with the decision of the Circuit Court of Appeals for

this circuit that evidence is sufficientprima facieto entitle

the Government to recover the five dollars, and the defendants

here in open court have admitted liability for that five dollars.

Therefore your verdict will be in favor of the Government for the

sum of five dollars. I have prepared a verdict which you will

select one of your number to sign as foreman, and that will be

your verdict in the case."

To this instruction the Government saved an exception. From a

judgment in favor of the defendants for all but five dollars of

the amount claimed, the Government prosecuted

Page 597

error. The Circuit Court of Appeals affirmed the judgment upon

the authority of the ruling made by it when the case was

previously before it. This writ of error was thereupon

prosecuted.

Mr. Assistant Attorney General Purdyfor the United States:

The various provisions of the United States statutes which are relied upon by the Government as authorizing the introduction of the documentary evidence offered by the Government in this case, and making such documentsprima facieevidence of the facts therein recited are Rev. Stat. §§ 882, 889, 3849, 3962; Act of June 8, 1872, ch. 335, §§ 245-247, 251, as amended 1874, 1876,17 Stat. 313, 314;18 Stat. 235; act of August 3, 1882, ch. 379, § 22,22 Stat. 216.

The documentary evidence was sufficient. Greenleaf on Evidence, §§ 483, 493; Taylor on Evidence, vol. 3, § 1591; Wharton on Evidence, vol. 1, §§ 639, 640;United Statesv.Carr,132 U.S. 644,653;Evanstonv.Gunn,99 U.S. 660, and cases cited on p. 665;Binghamv.Cabot, 3 Dall. 19, 38.

The certified copy of the records in the auditor's office of the Post Office Department of the account of C.C. McCoy, as failing contractor, for the amount of actual damages sustained by the United States, taken in connection with the other testimony offered, isprima facieevidence not only of the fact and the amount of the indebtedness, but also of the time when and the manner in which it arose.Soulev.United States,100 U.S. 8,11;United Statesv.Stone,106 U.S. 525,530;UnitedStatesv.Dumas,149 U.S. 278,285. Cases on brief of defendants in error, distinguished.Mr. E.C. Hughesfor defendants in error:

The cases cited by the Government do not control this case, but seeUnited Statesv.Buford, 3 Pet. 12;United Statesv.Jones, 8 Pet. 375;Hoytv.United States, 10 How. 109;United Statesv.Forsythe, 6 McLean, 584;United Statesv.Case, 49 F. 270, in which it was held that transcripts andPage 598written statements did not make out aprima faciecase for the Government. See alsoUnited Statesv.Corwin,129 U.S. 381; and as to presumptions, seeUnited Statesv.Carr,132 U.S. 644.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

The assignments of errors and arguments at bar present two questions for decision. First. Were the copies of telegrams sent by the postmaster at San Francisco to the Post Office Department admissible in evidence? And, second, if they were, did the certified copy of the account of McCoy as a failing contractor from the books of the Auditor for the Post Office Department, the telegrams from the postmaster at San Francisco and the finding of the Postmaster General that McCoy was a failing contractor, make out aprima faciecase for the Government? Concerning the first question it suffices to say that, although it is urged that the telegrams were not admissible because they were merely copies of copies, the originals being on file in the telegraph office from which the messages were sent, the record does not show that any ruling on this subject was insisted on in the trial court, and hence no exception was taken to the introduction of the copies. As the objection that the telegrams were not the best evidence because they were merely copies was susceptible of being cured, if insisted on, it follows that the failure to so insist and reserve the question was a waiver of the objection. It then remains only to consider whether, taking into view the whole case as made by the Government, aprima facieright to recover was established. Section 889 of the Revised Statutes is as follows:

"Copies of the quarterly returns of postmasters and of any papers pertaining to the accounts in the office of the Sixth Auditor, and transcripts from the money-order account-books of the Post Office Department, when certified by the Sixth Auditor under the seal of his office, shall be admitted as evidencePage 599in the courts of the United States, in civil suits and criminal prosecutions; and in any civil suit, in case of delinquency of any postmaster or contractor, a statement of the account, certified as aforesaid, shall be admitted in evidence, and the court shall be authorized thereupon to give judgment and award execution, subject to the provisions of law as to proceedings in such civil suits."

The certified account from the books of the Auditor for the Post Office Department which was offered in evidence came clearly within this statute. The items in that account were ascertained and established in the regular course of official action by the department, and represented disbursements made in the ordinary course of business for temporary service and under the new contract, all of which was occasioned by the actual or assumed default of McCoy. The payments shown by the items, therefore, properly appeared on the books of the Treasury Department. The account was clearly therefore competent, at least, for the purpose of showing the amount of the indebtedness, if any, existing.United Statesv.Stone,106 U.S. 525. As, however, the correctness of the items in the account depended upon proof of the fact of the delinquency of McCoy, the contractor, it remains to determine whether the evidence introduced by the Government at the trialprima facieestablished such delinquency; in other words, whether the evidence was sufficient, in the absence of proof to the contrary, to show that McCoy had totally abandoned his contract on May 5, 1893. The solution of this question depends upon the probative force of the official finding by the Postmaster General that McCoy was a failing contractor, based, as it was, upon the official report on the subject made to the department by the postmaster at San Francisco.

InUnited Statesv.Dumas,149 U.S. 278, the court considered the act of June 17, 1878,20 Stat. 140, chapter 259, paragraph 1, which provides: "That in any case where the Postmaster General shall be satisfied that a postmaster has made a false return of business, it shall be within his discretionPage 600to withhold commissions on such returns, and to allow any compensation that under the circumstances he may deem reasonable." The facts were as follows: On August 11, 1888, the then Postmaster General made an order, reciting his "being satisfied" that Dumas had made false returns of business at the office of which he had been postmaster, and declaring that in the exercise of the discretion conferred by acts of Congress the commissions on such returns were withheld, and the compensation of the postmaster was fixed as stated in the order. As a result of this finding by the Postmaster General, an action was subsequently brought against the postmaster and his sureties, and it was decided that the order of the Postmaster General and the certified accounts of the Government, which were produced and which were founded upon such order, were held to beprima facieevidence of the balance due the Government.

Moreover, by section 3962 of the Revised Statutes it is provided that —

"The Postmaster General may make deductions from the pay of contractors, for failures to perform service according to contract, and impose fines upon them for other delinquencies. He may deduct the price of the trip in all cases where the trip is not performed; and not exceeding three times the price if the failure be occasioned by the fault of the contractor or carrier."

And the second section of the act of August 3, 1882, c. 379,22 Stat. 216, provides as follows:

"SEC. 2. Whenever a contractor for postal service fails to commence proper service under the contract, or, having commenced service, fails to continue in the proper performance thereof, the Postmaster General may employ temporary service on the route, at a rate of pay per annum not to exceed the amount of the bond required to accompany proposals for service on such route, as specified in the advertisement of the route, or at not exceedingpro rataof such bond, in cases where service shall have been ordered to be increased, reduced, curtailedPage 601or changed, subsequent to the execution of the contract; the cost of such temporary service to be charged to the contractor, and to continue until the contractor commences or resumes the proper performance of service, or until the route can be relet, as now provided by law, and service commenced under the new award of contract, all acts or parts of acts inconsistent with the provisions of this act being hereby repealed."

These provisions, by necessary implication, declare that whenever the Postmaster General "is satisfied," from evidence presented to him, that conditions exist which justify the imposition of fines or the deciding that a postal contractor has abandoned the performance of his contract, the Postmaster General may act as authorized in such provisions. It would seem to be an appropriate act for the Postmaster General to make distinct official evidence of the fact of such finding, to be filed among the archives of his office. The pertinency of such an official finding was, as has been shown, recognized in theDumascase; and, when coupled, as it is in the case at bar, with the reports upon which the finding in the certificate was based, we think the certificate was legally competent to establishprima faciethe fact that McCoy had abandoned his contract. It was made the duty of the postmaster at San Francisco, by section 3849 of the Revised Statutes, to "promptly report to the Postmaster General every delinquency, neglect or malpractice of the contractors, their agents or carriers, which comes to his knowledge." The reports embodied in the telegrams in question on their face show that they related to facts which had come to the knowledge of the postmaster, bearing upon the delinquency of McCoy particularly the ultimate fact of total abandonment by McCoy of his contract. The opinion inUnited Statesv.Corwin,129 U.S. 381, contains a clear recognition of the competency, as evidence, of official communications of this character, when made to those higher in authority, as supporting and giving evidential weight to findings based thereon. The reports contained in the telegramsPage 602in question present an application of what is stated in the opinion in theCorwincase (p. 385) to be "the well-established rule that official reports and certificates made contemporaneously with the facts stated, and in the regular course of official duty, by an officer having personal knowledge of them, are admissible for the purpose of proving such facts."The judgment of the Circuit Court of Appeals is reversed; thejudgment of the Circuit Court is also reversed, and the cause isremanded to the Circuit Court for further proceedings inconformity with this opinion.