UNITED STATES v. McCOY et al., 104 F. 669

MORROW, Circuit Judge, after the foregoing statement of facts, delivered the opinion of the court. A material allegation of the complaint was “that on the 8th day of May, 1893, the said C. C. McCoy and the said subcontractors did abandon the said contract, and did fail and refuse to perform the same.” The general denial of the answer placed this allegation of the complaint in issue, and it devolved upon the plaintiff at the trial to establish the fact alleged by competent proof.

The statement of McCoy’s account by the auditor of the postoffice department; the telegram of the postmaster at San Francisco to the second assistant postmaster general, dated May 8, 1893, stating that the contract had been abandoned; the letter of the second assistant postmaster general, dated May 17, 1893, and addressed to the postmaster at San Francisco, approving the action of the latter in employing temporary service for the route; the certificate of the postmaster general dated May 18, 1893, declaring that McCoy had failed to perform the service, and was a failing contractor, — were all legally insufficient to establish the fact that McCoy had wholly abandoned the performance of his contract.

The postmaster at San Francisco appears to have had knowledge of the fact, and all the subsequent proceedings were based upon his statement of the fact in the telegram to the second assistant postmaster general, but his testimony as to the fact was not obtained in this case.

Section 3962 of the Revised Statutes provides that the postmaster general may make deductions from the pay of contractors for failures to perform service according to contract, and he is authorized to impose fines upon them for other delinquencies; but this authority does not extend to the making of a certificate that a contractor has wholly abandoned his contract, nor does it provide that, if such a certificate is made, it shall be admitted in evidence as proof of the fact of abandonment, in support of a 'claim for damages incurred by reason of the increased expense of the service under a new contract.

The court was, therefore, right in holding that the documents offered in evidence by the plaintiff were legally insufficient to make out a prima facie case for damages on account of the alleged entire failure of McCoy to perform the service provided in his contract. But the statement of the account contains a charge of $5 for a fine imposed by the postmaster general upon the contractor for a delay of 16 hours on July 5, 1893, in dispatching 11 pouches of mail for the S. F. & S. C. R. P. O.

The. evidence that this fine was imposed is contained in a document authenticated by the postmaster general under the seal of the department, as required by

section 882 of the Revised Statutes, which provides that copies of any books, records, papers, or documents in any of the executive departments, authenticated under the seals of such departments, respectively, shall be admitted in evidence equally with the originals thereof. The document reciting the action of the postmaster general in imposing this fine, authenticated in accordance with this

section of the Revised Statutes, was offered and admitted in evidence, and was prima facie evidence that the fine had been imposed as authorized by

section 3962 of the Revised Statutes. The accounting officers of the postoffice department may certify to facts which come under their official notice. U. S. v. Jones, 8 Pet. 375, 384, 8 L. Ed. 979; Bruce v. U. S., 17 How. 437, 441, 15 L. Ed. 129. They had this evidence before them, and it was official information that the fine had been imposed. The statement of account was therefore prima facie evidence of this charge of $5, and, if this evidence was not overcome by competent proof, entitled the United States to a verdict and judgment for that amount. Judgment reversed, with instructions to the court below to take further action in accordance with this opinion.