To the Sixth Auditor:
Sir: H. M. Vaile was subcontractor on route 40104 during the first quarter of 1879. In the first settlement for that quarter Vaile was paid for certain expedited service—it was subsequently discovered that the expedition thus paid for was never performed—the department therefore, and very properly, too, charged back to the route the amount thus paid for expedition never performed, viz, some two thousand eight hundred dollars.
Meanwhile Vaile, who alone was in fault, had ceased to have any connection with the route—the charging back, therefore, fell on the wrong man, the man who was in no way responsible for the non-performance of the expedition, except so far as he stood between the department and the subcontractor.
It is true that this payment was made by the regular contractor to the subcontractor, but it is equally true that it was, in a measure, a compulsory payment. By the rules of the Post-Office Department it is made obligatory on the regular contractor to pay the subcontractor before the department will settle with him—it is not, therefore, a payment as between two individuals. The receipt is on the form prescribed by the Post-Office Department, and is witnessed by (the then) Postmaster Edmunds, as the rules prescribe. It is on file in the Post-Office Department, and I maintain that our covenants were fulfilled when we put the receipt on file. If Vaile had performed the service as he agreed he would do, and for doing which he received this money, we should have been reimbursed by a certificate of service from the contract office. Now, will you permit Vaile to take advantage of his own wrong, and thus enable him to defraud another man out of his money?
I refrain from discussing the question as to what would be the duty of the department if Vaile, who had received the money wrongfully, had ceased to have any connection with the department, because it is not pertinent to this issue; if it were, I could cite you to many authorities and precedents to the effect that even then it would be your duty to refund the money to me. But this is not necessary, because Vaile is still doing business with the department.
He is subcontractor on route 44156 for the full contract pay, which is twenty-two thousand dollars per annum, hence the department will have no difficulty in reimbursing itself for what was, in simple truth, an overpayment.
I think you will agree with me when I ask that this money be refunded to the subcontractor on route 40104 and charged to route 44156, because it is simply correcting an error. You have the same authority to charge it to one as you have to charge it to the other, and you have already charged it to me.
The law-merchant would experience no difficulty in adjusting a matter of this sort. The merchant who would refuse to correct an error of this character would be justly called a lame duck, and would be scouted from "'Change" Vaile was erroneously paid for the performance of a service which he never did perform. Therefore I ask that he be compelled to render unto Caesar the things that he ceasers.
Respectfully,
M. C. RERDELL.