I proved where they were living; that they are living in the country now, good, respectable, honest people. And yet the Government did not bring one man whose name had been written here to prove that he had not authorized it. Why? Because they could not. They knew by the testimony here that the pet.i.tions were absolutely and perfectly honest. And it is in that way that they seek to deprive men of their liberty. They did not call a man whose name appeared on those pet.i.tions to say that his signature was not genuine or not authorized. I proved that many of them are still living and first-rate men.
Now, gentlemen, you remember besides that, that Mr. H. S. Stevens, the delegate from that Territory, recommended the same thing asked for by those pet.i.tions (pages 1635, 1636), where it was admitted by counsel for the Government that the letters of Stevens were genuine. It is upon that same route that General Fremont also wrote a letter (page 1636). And I will show you that the names are exactly or substantially the same on 18 K as those found at pages 1638 and 1639.
Mr. Ker and Mr. Bliss both endeavored to show that there were no pet.i.tions on this route, and that it was simply done on a letter. If you will look at page 1603 you will find the evidence of Mr. Krider, who was postmaster at Mineral Park, in which he says there were pet.i.tions.
In order to show that there was a conspiracy between these parties, or between Dorsey and Vaile, or Dorsey, Rerdell, and Vaile, Mr. Ker called the attention of the jury to two letters, one written by Rerdell to the Sixth Auditor, and one written by Vaile. Here is a letter dated the 21st of August, 1880. It is introduced, of course, to show that there was a conspiracy at that time between Mr. Vaile and Mr. Dorsey. It was written by Mr. Rerdell to the Sixth Auditor:
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.
Acting for himself and for the regular contractor on route 40104.
That is to show also, gentlemen, that there was a conspiracy between Vaile and Rerdell. Now, Mr. Vaile wrote a letter also to the same man. I will read it:
Washington, D. C., July 9, 1880.
Hon. J. McGrew:
Sir: In reply to yours of July 8th, relating to the Jennings case, I would state that I did not receive the money in manner and form as stated by one M. C. Rerdell, nor was the draft of J. W. Dorsey, on said route 40104, for the quarter named, to get an advance of money for myself or for my own use.
At the time I receipted for my pay as subcontractor on said route I did not, in fact, receive any money, but did so receipt that J. W. Dorsey might negotiate his draft on said route, and for no other purpose.
Although I was subcontractor of record on said route at the time named, I was not a subcontractor in my own behalf, but as trustee for J. W.
Dorsey, S. W. Dorsey, Isaac Jennings, and others, to collect said money and pay it over as said parties should direct. I further state that all money that ever came into my hands from said route I did pay over to the parties named as trustee, as by them directed.
Acting as trustee of said Jennings, and believing that he had performed the mail service on said route as by him agreed, and in accordance with the laws and regulations of the Post-Office Department, I did pay said Jennings, on the 1st day of April, 1879, the sum of $1,257.73, a sum of money he was ent.i.tled to provided he had carried the mail three days per week on the schedule required, which I fully believed at that time he had done, and for a long time after.
I further state that I am informed that said Jennings is not responsible; that it would be utterly impossible for me to receive back the $2,800, or any part thereof; that in fact this sum of money sought to be collected of me, if collected for said Jennings"s benefit, or go into his hands in addition to the sum he now has unlawfully, doubly remunerating him for his neglect of duty.
I further state that all the money collected on said route not paid to said Jennings was paid to liquidate the debts of J. W. Dorsey, S.
W. Dorsey, and others previously contracted, and not one dollar ever remained in my hands.
I further state I believe both J. W. Dorsey and S. W. Dorsey are irresponsible, and it would be impossible for me to collect any part of said money from them. As above stated, said money came into my hand only as their agent or trustee, and at once paid out as they directed; that my subcontract was put on file simply to enable J W. Dorsey to negotiate his draft on said route, when in fact said Jennings was the real subcontractor. Said Jennings agreed to perform the service on said route strictly in accordance with the laws and regulations of the department, for the annual sum of $12,600.00, the duplicate of which contract was delivered over to S. W. Dorsey by myself, and which I believe is now in the hands of M. C. Rerdell, and which, or a copy thereof, I demand shall be filed with you in this case, that you may see what said Jennings agreed to do.
This is certainly a strange claim. Jennings agreed to perform mail service on said route. I believed he had done it, and paid him accordingly. It turns out long after he did not properly perform the service, but was attempting a swindle, and a deduction is ordered for not performing the service properly. Then this man, the guilty party, having got money from me, as trustee, wrongfully, as well as from the Government, and asks that the Auditor compel me to pay him the sum of $2,800.00, when, as I am informed, he is seeking to get this same deduction remitted.
Surely if he succeeded in all this he will make a good thing out of his rascality and I a good victim without remedy. I state again I did not hypothecate said draft for myself, did not receive one cent as subcontractor, but became the payee of said draft that said J. W.
Dorsey might negotiate it, and I to dispose of the proceeds as he should direct, all of which I did. Therefore I request you not to compel me to pay the sum of money asked, but if I am liable at all let the parties seek their redress at law, where all the facts can be obtained and justice rendered me. And it is also well known that I am a man of means, and any judgment rendered against me could and would be collected, dollar for dollar.
I am, very respectfully,
H. M. VAILE.
That was introduced to show that at the time Vaile was in a conspiracy with S. W. Dorsey. Why did they introduce it? Simply for one line in it in which he says he was acting as the trustee of S. W. Dorsey. He was.
How? Dorsey had advanced money. The routes were liable, and the persons who held the routes had agreed to refund it. The subcontracts were made to Vaile, and Vaile agreed out of the proceeds of the route to pay the debt to S. W, Dorsey. To that extent he was the trustee of S. W. Dorsey.
Dorsey swears it. Vaile admits it, and we all claim it to be true. And yet they introduced that letter simply because that line was there. Now, gentlemen, I have read both of those letters, and I want you to remember them if you can, and tell me whether at that time Vaile and Dorsey were in a conspiracy together to defraud this Government. And yet the Government introduced this letter just to prove that one thing, and no more.
On the Julian and Colton route there is this peculiarity: The Government failed to prove the number of men and horses necessary on the original schedule for three-times-a-week service, and consequently we are left without any standard by which to judge; without any standard by which to measure.
On page 4685 Mr. Ker calls attention to the fact that the proposal marked 6 P, originally contained an offer to carry the mail at thirty-six hours for seven thousand seven hundred and twenty-two dollars additional, but he states that the thirty-six was rubbed out and twenty-six was put in its place.
That is, they offered to carry it in thirty-six hours for seven thousand and odd dollars, and then afterwards fraudulently, of course, rubbed out the thirty-six and inserted twenty-six. But they did not change the sum for which they offered to carry it. They offered to carry it in thirty-six hours for seven thousand seven hundred and twenty-two dollars, and afterwards they rubbed out the thirty-six and put in twenty-six, and then offered to carry it in twenty-six hours for seven thousand seven hundred and twenty-two dollars. The question arises, how did that hurt the Government? The question arises, was that a fraud? If it had been originally twenty-six hours and they had rubbed out those figures and put in thirty-six hours, then you might say the intention was to defraud the Government. But the proposition had to be accepted after that was done, and consequently in no event could the Government be defrauded by the change of the proposal before the Government accepted the proposal. I might say to a man, "I will let you have a house and lot for ten thousand dollars." He does not accept the proposal. Have I not the right on the next day to charge him twelve thousand dollars for it? Is that a fraud? If I tell him, "You may have it for ten thousand dollars," and he accepts, then, as an honorable man, I cannot change the proposal. But if I tell him he may have it for twelve thousand dollars and then afterwards tell him he may have it for ten thousand dollars, Mr. Ker calls that a fraud of two thousand dollars. If one of the jury should give me a contract to deliver one hundred horses for ten thousand dollars, and I should scratch out the one hundred and put in seventy-five, certainly you would not consider yourself defrauded. Or if I agreed to carry the mail in thirty hours for the Government for seven thousand seven hundred and twenty-two dollars, and then afterwards changed and said I would carry it in ten hours less time for the same price, can that be tortured into a fraud--unless I might be indicted for defrauding myself?
On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor says:
I always carried the mail in from six to ten hours before expedition.
I carried the mail from Greenhorn to Pueblo. I did not stop at Saint Charles.
On page 835 Mr. Farrish says he carried the mail for three months in 1881. That is the only time Farrish carried the mail. This route was expedited on the 26th day of June, 1879, and yet Mr. Ker says that Farrish carried the mail before it was expedited and carried it in from six to ten hours. Mr. Farrish did not carry the mail until about two years after it had been expedited.
On page 4768 Mr. Ker, speaking of the two affidavits on the route from Pueblo to Rosita, laughs at the idea that the proportion was the same in both.
Now, what is the proportion in both? One affidavit says that on the then schedule it would take eight men and horses; that is, the horses and men added together make eight, and that on the proposed schedule it would take twenty-four. Then they would be ent.i.tled to just three times the money they were receiving on the original schedule, because three times eight are twenty-four. Let me explain here what I mean by proportion.
If I am carrying the mail with, say, four horses and two men, making a total of six, and if then that service is increased so that it takes twelve men and horses, I get twice the original pay; if it takes eighteen men and horses, I get three times the original pay.
You understand that there is always a relation between the pay and the number of men and horses used. If I am using one man and one horse and am getting a thousand dollars for the service, and if it is expedited so that I have to use two men and two horses, I would get two thousand dollars. In the first affidavit they had eight men and horses. If they put up the service to what they were going to, it would take twenty-four. Three times eight are twenty-four. Then they would get three times the original amount of money. In the second affidavit he swears that it takes fifteen men and animals on the present schedule, and on the proposed schedule it would take forty-five men and animals.
Three times fifteen are forty-five. Three times eight are twenty-four.
You see that on both affidavits you get the same amount of money to a cent, because the proportion is absolutely and exactly the same. Yet Mr.
Ker laughs at the idea of the proportion being the same. It took eight men and horses in the first affidavit on the present schedule, and twenty-four on the proposed schedule. There the contractor would be ent.i.tled to three times the original sum. In the next affidavit it took fifteen men and horses on the original schedule and forty-five men and horses on the proposed schedule. Again, he would be ent.i.tled to three times the original sum.
On page 4579 Mr. Ker says the oath was put in for three trips. By looking at page 867 we find that it was for seven trips and not three.
There is nothing like accuracy.
On page 4580 Ker says that Brady had on the jacket before him the evidence that Hansom was a subcontractor at three thousand one hundred dollars a year, and the contract gave the contractor a clear profit of five thousand and forty-eight dollars. The fact is, that Brady"s order was made on July 8, 1879. That order is on page 866. Hansom"s subcontract was filed October 22, 1879, about three month"s after Brady"s order was made. And yet Mr. Ker tells you that on that jacket when Brady made the order he had notice of Hansom"s subcontract. Unless he had the gift of seeing into the future he knew nothing about it. He would have had to see into the future three months in order to have had it before him at that time.
On page 4703 Mr. Ker says that the letter of J. W. Dorsey, written April 26, 1879, referred to the Perkin"s affidavit as not putting the number of men and animals high enough. Let us see. Another case of arithmetic.
The letter refers to Dorsey"s statement transmitted with the letter. It could not be the way stated by Mr. Ker for the following reasons: The affidavit of Perkins said three men and six animals one trip a week on the then time. That makes nine. On one trip a week with the reduction to eighty-four hours, eight men and twenty-four animals would be required.
That makes thirty-two. The proportion then gives three and five-ninths or three hundred and fifty-five per cent, increase of pay. That is the affidavit, he says, that Dorsey wrote out and said was not high enough, and then fixed up one that was. The affidavit that John W. Dorsey sent in the letter says that it will require for three trips a week on the then time four men and twelve animals, making sixteen; on the proposed schedule for the same number of trips eleven men and thirty-two animals, making forty-three. As sixteen is to forty-three--that is, two hundred and sixty-nine per cent, increase of pay. Now, that letter, he says, claims that the Perkins affidavit did not put it high enough. I say that he did not refer to the Perkins affidavit. He could not say that did not put it high enough, because that put it at three hundred and fifty-five per cent., and the affidavit he inclosed in the letter, put it at two hundred and sixty-nine per cent.--nearly one hundred per cent. less.
According to Mr. Ker he was complaining that that affidavit was too low, and so he inclosed one, one hundred per cent, lower. That will not do. Besides all that the affidavit of John W. Dorsey is for forty-five hours, while the first affidavit, I believe, is for eighty-four hours.
John W. Dorsey offers to carry it in forty-five hours for two hundred and sixty-nine per cent., and the other affidavit on the basis of eighty-five hours calls for three hundred and fifty-five per cent. Do you not see, gentlemen, it is utterly impossible to believe that?