delivered the opinion of the court:
This is a suit brought by the executor of the estate of William Weighel, deceased, for the sum of $52,327.60. On the 17th day of January, 1895, William Weighel entered into a contract with the Postmaster General of the United States to perform covered regulation mail messenger, transfer, and mail station service in Chicago, Ill., on mail route No. 235001 for the period from the 1st day of July, 1895, to the 30th day of1 June, 1899. Among other things the contract provided: “ To carry said mail, using therefor wagons of the kind hereinafter described in sufficient number to
At the time the contractor Weighel bid on this route and entered into the contract with the Government, no mail service in the city of Chicago was being performed to and from street cars by contractors who Avere performing the same mail service which was bid for by the said contractor, nor did the proposal of the defendants for mail service on this route mention service to and from street cars, although the proposal to bidders published by the defendants for the period beginning July 1, 1899, did mention specifically electric and cable cars. The aforesaid contractor, through his agent, was informed by the postmaster of Chicago, who was authorized by the Postmaster General of the United States to give information to bidders, that the bidder obtaining the contract for the performance of mail service on route 235001 for the period set out in the findings would not be required to perform mail service to and from street cars.
Under orders issued by the Postmaster General, which orders are set out in the findings, the subcontractor was required to perform mail service to and from street cars in the city of Chicago. As a result of these orders the subcontractor had to make to and from street cars 523,276 trips, and was obliged to employ 24 men, 4 double vans, and • 7 single wagons to perform the service, which had been previously performed by 4 drivers and 4 single wagons, all of which greatly increased the expense of the service and imposed upon him duties and undertakings which were not contemplated in the contract. The value of the service rendered by the subcontractor in the making of the trips imposed upon him by the orders of the Postmaster General to and from street cars was $52,327.60, no part of which amount has been paid to the subcontractor nor to anyone else. This service was performed under protest, and the contractor notified the defendants that compensation therefor would be demanded. The Government contends that the Postmaster General under the authority conferred upon him by the contract in this case had a right to require the contractor to render new or additional mail messenger or transfer service, and that the trips to and from street cars was such new and additional service as was provided for in the contract. We do not think so. The service required was of an entirely different nature from that described in the contract, imposed upon the contractor very great burdens, and involved him in great expense which he could not have foreseen or guarded against when he entered into the contract.
We think this case is governed by the principles laid down by the Supreme Court of the United States in the case of United States v. Utah, Nevada & California Stage Co., 199 U. S., 414, 422, 423, and if the plaintiff’s decedent, in this case had performed the services for which he brings suit,
It is unfortunate that Travis did not sue in his own name, or that Weighel did not sue for the benefit of Travis. After the suit brought by Weighel had been pending in this court for over six years, it seems to have occurred to Travis that Weighel did not have a cause of action, and he therefore undertook to sue in his own name, but it was held that he was too late; that he was barred by the statute of limitations, and his suit had to be dismissed. Had he brought his suit in time, or if Weighel had sued for his benefit in the first place, it is difficult to perceive how he could have been defeated. As the matter stands, it clearly appears that Weighel has no interest in the subject matter of this suit; therefore his executor can not maintain it, and his petition must be dismissed.