26 F. 908 (D.Kan. 1886), United States v. Cosgrove

Citation:26 F. 908
Court:United States District Courts, 10th Circuit, District of Kansas

Page 908

26 F. 908 (D.Kan. 1886)




United States District Court, D. Kansas.


At Law. Demurrer to declaration.

W. C. Perry, U.S. Atty., and Geo. L. Douglass, for plaintiff.

John C. Tomlinson, for defendant.


This action is brought by the United States to recover from the defendant a large sum of money, to-wit, $140,000, alleged to have been paid him wrongfully and illegally, by order of the postmaster general, between October, 1878, and July, 1882, for carrying the mail on route No. 39,109, from Las Vegas to Las Cruces, New Mexico. The declaration contains three separate causes of action. The first charges that the defendant entered into a contract with the postmaster general for the United States, to carry the mail over said route three times a week, for the contract price of $14,900 per year; that at different times in 1878 the postmaster general increased and expedited the service on said route, and made the following orders:

'1878, September 12, (7,772,) modified. Embrace Roswell on this route between Fort Sumner and Fort Stanton, from July 1, 1878. Distance and pay hereafter to be determined.'

'1878, October 24, (9,444.) Modify order of September 12, 1878, (7,772,) so as to increase distance 62 miles; contractor's pay $2,517.16 per annum, being pro rata.'

'1878, October 29, (9,614.) Reduce schedule time from 180 hours to 120 hours, and allow contractor $21,876.55 per annum additional pay, being pro rata from November 15, 1878. (2) Increase service four trips per week, and allow contractor $52,120.96 per annum additional pay, being pro rata from November 15, 1878.'

It is charged that the order of October 29th, making allowances for expedited service on said route, was based upon a sworn statement of the defendant, of which the following is a copy.

'WASHINGTON, D.C., October 23, 1878.

'Hon. D. M. Key, P.M. General-- SIR: In order to reduce the running time on route 39,109, from Las Vegas to Las Cruces, New Mexico, from the present schedule of seven and one-half days to five days, as contemplated, I respectfully submit that to perform tri-weekly service upon this route upon the present schedule will require twelve carriers and thirty-six animals. To shorten the running time to five days' schedule will necessarily require nine

Page 909

additional carriers and fifty-two animals additional to increase said speed as desired. This to the best of my knowledge and belief.



'Acknowledged and sworn to before me, this twenty-third day of October, A.D. 1878.

JOHN W. CARSON, Notary Public.'

It is further alleged that said statement was false and untrue in this: that it did not require the additional number of carriers or animals as therein stated, to perform the expedited service, but that in fact no additional carriers and no additional animals were either required or used by reason of the expedition of the schedule time; and by reason of said false allegations the postmaster general was misinformed and misled, and made such allowance under a mistake of fact; that said payments to the said defendant under the order during said time amounted to the sum of $132,577.49.

The second count charges that the order of October...

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