Dilliard v. Carberry, 19 N.C. 280, 2 Dev. & Bat. 280 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 280, 2 Dev. & Bat. 280

MERRIT DILLIARD v. THOMAS CARBERRY.

When the Postmaster-General vacates a contract for carrying the mail, and transfers the route to another person upon condition of his paying the first contractor a stipulated sum, the first contractor acquires a vested right to such sum; and the Postmastcr-Generalcan not subsequently discharge the-second from its payment.

Assumpsit, in which the plaintiff declared against the defendant for the sum of four hundred dollars, being the price which he alleged that the defendant had agreed to pay him, for an assignment of the mail contract from Raleigh to. Greensborough. Plea, non assumpsit. The case was submitted to Settle, Judge, at Wake, on the Spring Circuit of 1836, upon a case agreed, stating the following facts.

The plaintiff was the contractor, for carrying the mail from Raleigh to Greensborough,’ and the Postmaster-General heing dissatisfied with his performance, had determined to remove him ; and the defendant sought to have the contract given to him; but the Postmaster-General learning that the plaintiff had been offered four hundred dollars for an assignment of it, refused to give it to the defendant, unless he would pay the plaintiff that sum, and also take at a valuation, his horses, stages, &c.; and this the defendant agreed to- do. This arrangement was made between the defendant and the Postmaster-General personally, the plaintiff not being present. On the defendant’s return ffrom Washington City, he notified the plaintiff of the determination of the Postmaster-General, and of his, the defendant’s, willingness and readiness to comply with his engagement; and called upon the plaintiff to surrender the route, and submit his property on it, to valuation. In his reply, dated March 12th 1832, the plaintiff refused to do this then, but stated that he should go to Washington, and if he could not get himself reinstated in the contract, he would be ready to make the surrender about the first of the ensuing month. A very angry correspondence passed between the parties, the defendant refusing, in consequence of his previous tender, and the refusal of the plaintiff, to pay the four hundred dollars stipulated for by the Postmaster-General. In consequeuce of an appeal to that officer to enforce the payment of this sum, he called for the correspondence between the plaintiff and defendant ; and by a letter dated July 20th 1832, he directed the latter to continue to carry the mail according to his contract, expressing his determination “to decline any further interference in the case.”.

Upon these facts, it was insisted for the plaintiff that he had a right to claim the four hundred dollars, by virtue of the agreement made for his henefit between the defendant and the Postmaster-General.

For the defendant, it was contended, that as the Postmaster-General had a right at his pleasure to terminate the plainlifF’s contract, the agreement contended for, was not a contract with the plaintiff, but was only a matter of police adopted by the Postmaster-General for the regulation of his department; and that he had an equal power to discharge the defendant from all obligation to obey the order. But his Honor being of opinion for the plaintiff, judgment was entered accordingly ; and the defendant appealed.

Devereux, for the defendant.

H. W. Haywood, for the plaintiff

Gaston, Judge.

We are of opinion that there is no error in the judgment rendered below. There was an express promise on the part of the defendant to pay to the plaintiff four hundred dollars as a premium or bonus on the transfer to the defendant of the plaintiff’s contract for carrying the mail. The promise was in law made to the plaintiff, though required by the Post-office department as a condition precedent to the transfer of the plaintiff’s contract. The letter of the plaintiff of the i2th of March contains no waiver of the plaintiff’s right to this money. He was not personally present when the decision of the department was made, and when first apprized of it, insists on having a little time to go on to Washington, to see whether he can be permitted to retain the contract — but most distinctly states, that if the decision of the department is final, he will be ready to execute on his part whatever arrangements may be necessary in conformity to it. His letter of the 3rd of April, announces his return from Washington, and calls upon the defendant to execute the decision of the department. The subsequent letters between the parties plainly refer to the valuation of the horses, stages, &c., which the plaintiff had a right to insist should be taken by the defendant, and cannot be forced into a rejection or waiver of the claim to this sum of money.

The plaintiff acquired a vested right to this money by virtue of this promise; and the department could not release the defendant from the obligation to comply with it. But we hold it clear that the department did not pretend to release the defendant. The letter of the 20th July declares the determination of the department not to exercise its powers over the subject-matter in controversy —not to interfere with the controversy, either in behalf of the plaintiff or of the defendant. The parties were left by the department to the exercise of their respective rights.

Per Cukiam. Judgment affirmed.