APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
A preliminary objection has been advanced on behalf of the appellee against a review of the first judgment rendered by the general term, which determined the principles upon which the account was to be taken by the auditor. It is claimed that the appellants are concluded by the failure of the then defendant Harvey Spalding to appeal from the decree of the
special term, when an appeal had been taken by the complainant.
Section 772 of the Revised Statutes, relating to the District of Columbia, provides as follows:
"Any party aggrieved by any order, judgment or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term of the Supreme Court, and upon such appeal the general term shall review such order, judgment or decree, and affirm, reverse or modify the same, as shall be just."
This section does not in terms confine the right of appeal from the special to the general term to merely final orders or final decrees in a cause. An interlocutory order or decree which involves the merits may be reviewed by the general term upon the appeal of a dissatisfied party without awaiting a final determination of the cause. It is not made obligatory upon a dissatisfied party to appeal, because the other party has done so; and we are of opinion that, upon an appeal to this court from a final decree of the general term (Rev. Stat. § 705) the entire record is brought up for review. Hitz v. Jenks, 123 U.S. 297; District of Columbia v. McBlair, 124 U.S. 320; Grant v. Phoenix Mutual Life Ins. Co., 121 U.S. 105.
The errors specified in the brief of counsel are fifteen in number. The first six and number thirteen attack the correctness of the decision holding that the complainant was entitled to recover his proportion of the fees collected upon claims embraced in the list of 7500 referred to in the answer. Assignment seven covers the second exception taken to the report of the auditor; assignments eight and nine question the correctness of the finding "that the complainant is not chargeable with any part of the expenses of the business of securing and prosecuting" the claims contained in said list of 7500 cases; the tenth and eleventh assignments of error cover the fourth exception to the auditor's report; and the twelfth assignment alleges error in the allowance of interest.
Before taking up, for detailed examination, these assignments
of error, it will be necessary to consider the claims which the defendant Spalding represented at the time of the execution of the contract of June 3, 1880, and his construction of the rights of the claimants.
We quote the following statement from the brief of his counsel:
"Under the provisions of the act of June 22, 1854, c. 61, 10 Stat. 298, postmasters were paid for their services by commissions on the postage collected at their respective offices, which commissions were adjusted by the Auditor of the Post Office Department upon the returns for each quarter after the said returns had been made by the postmaster and received by the Department.
"By the act of July 1, 1864, c. 196, 13 Stat. 335, a complete change was made in the mode of regulating the compensation of postmasters. A salary system was adopted instead of the commission system. The salaries were fixed for two years in advance upon the basis of the business of the past two years, that is, the commissions upon the business of the past two years were computed at the rate fixed by the act of 1854, and the sum thus arrived at was made the fixed salary of the office for the ensuing two years, a readjustment of the salaries of every post office to be made upon this basis every two years."
Under the provisions of the act of 1864 it necessarily followed that where the business of an office rapidly increased the compensation earned by the postmaster fell below what he would have received if his pay had been calculated by commissions as under the act of 1854. It also followed that if the business of the office fell off, the incumbent might receive a larger compensation than he would have been entitled to under the previous act. The act of June 12, 1866, c. 114, 14 Stat. 59, directed the Postmaster General to readjust salaries of postmasters when the quarterly returns showed that the salary allowed the postmaster was ten per cent less than it would have been had the provision of the act of 1864 continued in force. The claims which Spalding was prosecuting resulted from this act of 1866, and the reason for their prosecution
before Congress was the fact that the Postmaster General had not made a readjustment, and that this court had decided in January, 1878, that the Court of Claims had no jurisdiction to enter a judgment for any amount in favor of such claimants until after the Postmaster General had readjusted the salaries.
By an act approved March 3, 1883, c. 119, 22 Stat. 487, it was provided:
"That the Postmaster General be, and he is hereby, authorized and directed to readjust the salaries of all postmasters and late postmasters of the third, fourth and fifth classes, under the classification provided for in the act of July first, eighteen hundred and sixty-four, whose salaries have not heretofore been readjusted under the terms of section eight of the act of June twelfth, eighteen hundred and sixty-six, who made sworn returns of receipts and business for readjustment of selary to the Postmaster General, the First Assistant Postmaster General or the Third Assistant Postmaster General, or who made quarterly returns in conformity to the then existing laws and regulations, showing that the salary allowed was ten per centum less than it would have been upon the basis of commissions under the act of June twelfth, eighteen hundred and sixty-six, and to date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business or quarterly returns were made: Provided, That every readjustment of salary under this act shall be upon a written application signed by the postmaster or late postmaster or legal representative entitled to said readjustment; and that each payment shall be by warrant or check on the Treasurer or some Assistant Treasurer of the United States, made payable to the order of said applicant, and forwarded, by mail, to him at the post office within whose delivery he resides, and which address shall be set forth in the application above provided for."
Except as to one or two immaterial verbal alterations, this act of 1883 was similar to House bill 3981, mentioned in the contract between complainant and defendant, and which failed to pass, January 17, 1881, except that the House
bill did not embody the proviso found at the end of the act of 1883.
In making up the list of 7500 cases referred to, Spalding had construed the act of 1866 -- as he subsequently did the act of 1883 -- as entitling the claimants embraced in said list to a sum equal to the difference between the amount of any salary which, during a particular term, they had received, and the sum which they would have received, had they been paid commissions on the business done in the office at the rate prescribed by the act of 1854. The Postmaster General, in May, 1883 -- and his opinion was concurred in by the Attorney General in February, 1884 -- construed the act of 1883 in connection with the act of 1866 in a different manner. It is unnecessary for the purpose of this opinion to state or discuss the particulars in which the construction of the Postmaster General differed from that adopted by Spalding or to indicate in any way which construction was correct. It is unquestioned, however, that the operation of the construction by the Postmaster General was that many of the persons whose claims were embraced in the list of 7500 cases referred to in the contract of June 3, 1880, were excluded from receiving any additional pay, and that rights arose in favor of others who were not supposed by Spalding to have claims at the time he prepared the list. Mason asserted a right to participate not only in the fees collected from the claims embraced in the list of 7500, but also in all other claims obtained by Spalding after the passage of the act of 1883. The general term, however, decided adversely to the contention of the complainant, and held that his share in fees was limited to cases embraced in the list of 7500, upon which claims the court held that the contract between complainant and defendant was based. In that construction complainant has acquiesced.
Assignments numbers one to six read as follows:
"1st. The court erred in allowing to the complainant an interest in all or any of the claims embraced in a list of 7500 claims mentioned in the answer of defendant.
"2d. The court erred in holding that the claims contemplated by the parties when they executed the contract of
June 3, 1880, were of such a nature that they could be regarded for the purpose of giving the complainant an interest therein, as the same claims that were actually prosecuted and collected under the act of 1883 and August 4, 1886.
"3d. The court erred in allowing the complainant $9972.88 as his share of fees collected by the defendant on claims paid at various dates between October 1, 1886, and May 1, 1889, as all of said fees were collected upon claims allowed and paid neither under authority of section 8 of the act of June 12, 1866, or under authority of the act of March 3, 1883, but under the sole authority contained in the act of August 4, 1886, 24, Stat. 308.
"4th. The court erred in not holding that the contract of June 3, 1880, became of no effect by the failure of passage of the bill in Congress mentioned therein, and in not holding that thereupon a new contract was made which became of no effect in charging the defendant with any liability thereunder by reason of the failure of the complainant to perform the same on his part, and by the putting an end thereto by the act of the defendant.
"5th. The court erred in holding that the complainant was entitled to one ofurth of all fees which have been collected out of the said list of 7500 claims which were procured subsequently to January 17, 1881.
"6th. The court erred in holding that the complainant was entitled to one fourth of all fees which had been collected out of the list of 7500 claims which were procured subsequently to March 3, 1883."
As before stated, no appeal was taken by the defendant to the general term from the interlocutory decree at the special term fixing the principles upon which the account should be taken. At the hearing in general term he seems to have acquiesced in the view that the complainant was entitled to an account as to 4208 cases admitted in the answer to have been received by Spaulding for prosecution, and to have been embraced in his list of 7500 cases, from which he received fees, and concerning which he offered to account. On the hearing before the auditor no exception was taken to the
admission of evidence as to the fees calculated upon claims embraced in the list of 7500 cases except as to cases which were sent to him for prosecution by attorneys. And although the auditor reported that the "amount of fees received by him in the cases included in the order of reference" was the sum of $16,339.11, no exception was taken by Spalding to such finding.
It is insisted now, however, that a proper construction of the contract excludes the complainant from any share whatever in the fees collected upon the claims embraced in the list of 7500 cases. This is asserted, although the claimants had valid claims against the government under the act of 1866, either upon the theory which Spalding believed to be correct according to his construction of the act, or upon the theory actually put into practice by the Postmaster General under his construction of that act in connection with the act of 1883. The contract, it is contended, contemplated that a recovery by the claimants should be had upon the precise theory which Spalding and the complainant entertained when the contract of June 3, 1880, was made. We do not adopt such a narrow view of the terms of the contract between the parties in the absence of clear and unequivocal language warranting it. This construction imports that Mason took the hazard, not of Spalding's ability to collect from the government for the claimants he represented, but the hazard of the government adopting and putting in practice Spalding's theory as to the exact status of the claimants under the act of 1866. If the claim of counsel is well founded, then had the House bill referred to in the contract, and which, as has been shown, was practically identical with the subsequent act of 1883, become a law, a construction of that act similar to that adopted by the Postmaster General with reference to the act of 1883 would have defeated all Mason's rights under the contract. But, in consideration of the payment by Mason of twenty-five hundred dollars, Spalding agreed to "prosecute to collection" the "claims" then in hand and others expected to be secured of "postmasters and late postmasters for adjustment of their aslaries, in conformity
to section 8 of the act of June 12, 1866." There was no qualification that the collection should be according to a particular theory as to the amount which ought to be recovered, but the plain import was that whatever was due by the general government to the claimants under the provisions of that act was to be collected. Whether we look at the acts of 1866 and 1883, or the later act of 1886, which merely approved the form of readjustment which had been theretofore pursued by the Postmaster General under the act of 1883, and directed that mode of adjustment to be continued in the settlement of further claims under the act of 1866, it is clear that whatever was allowed and paid to claimants was acquired by virtue of the provisions of the act of 1866. We therefore find assignments one and two to be without merit.
The objection covered by assignment three is also made for the first time in this court. No exception of this character was taken to the findings of the auditor. It appears to have been an afterthought. The point that payments subsequent to October 1, 1886, were made solely under the authority of the act of August 4, 1886, is clearly not well taken, for that act did not originate rights against the government, but simply regulated the mode of adjusting rights which had vested under the act of 1866, pursuant to the remedy afforded by the act of 1883. We have looked in vain through the carefully prepared answer of the defendant, himself an attorney, for any suggestion that the act of August 4, 1886, in any way injuriously affected the rights of complainant, though an intimation to that effect is contained in one or more letters from Spalding to Mason written after August 9, 1887. All through the answer it is admitted that the remedy by which Spalding made his collections was provided by the act of 1883. Further, the table showing the dates from which the auditor found the interest should be calculated, does not justify the assumption of ...