for the purpose of sustaining an act, it would be equally admissible to overthrow an act and cannot be permitted." We need not deal with the argument that the grant operated to pass the title to the lands located without more, since the invalidity of the act disposes of every right which might otherwise proceed from it. Neither does the bill state any facts which authorize us to hold that the Trustees of the Internal Improvement Fund made any contract in reference to granting aid in the construction of the Atlantic, Suwanee River and Gulf Railway by virtue of their general power under the act of September 28, 1850, vesting title to the state swamp lands in them. Every act averred to have been done by them was but a step in pursuance of the power which was sought to be conferred by the act of May 24, 1893. Their subsequent conveyance of the lands upon which the certificates issued by them to the railway company was in pursuance of a sale made by them to Neil G. Wade, and their refusal to make a deed of the same lands to the railway company, or its assigns, was based upon the invalidity of the enactment under which such deed was claimed. They incurred, neither personally nor officially, any responsibility for their conduct in the matter. The case of the railway company and their assigns is a hard one. They went forward under an enactment which was invalid, and have made large expenditures upon the faith of a law which they assumed was valid. But the consequences are not remediable save by an appeal to the legislative power. The proceeds of the sale of the lands located under the void certificates to Wade are not charged with any lien or equity by any of the facts stated in the bill. The decree of the Circuit Court must be in all things Affirmed. Argument for Appellant. 222 U.S. HUSE v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 74. Argued November 17, 1911.-Decided January 9, 1912. A mail service contractor cannot claim that he accepted a contract under misapprehension when between the time of his proposal and its acceptance he took a temporary contract for carriage of the identical mails contracted for. A contract for delivery of all mails at Union Station, Omaha, was properly construed by the Postmaster General as including mail delivered by three railroads not in the schedule, it appearing, however, that the mail so delivered had formerly been delivered by one of the railroads mentioned in the schedule and were included in a route specified in the contract. A mail service contractor whose contract had been cancelled for failure to perform sued in the Court of Claims for balance due and for damages for cancellation; that court held he was not entitled to judgment for the balance due because it appeared that the contract was properly cancelled and that the Government had sustained damages in excess of the balance due. In this court, held: that as the objection that the balance due could not, in the absence of a counterclaim pleading, be offset against the damages sustained by the Government had not been raised in the Court of Claims, that court rightly offset it, and the objection cannot be raised for the first time on appeal in this court. Quare: Whether the rules of practice in the Court of Claims would not permit the offset to be made in absence of any pleading setting up counterclaim or offset. 44 C. Cl. 19, affirmed. THE facts, which involve the construction of a contract for screen-wagon mail service in Omaha, Nebraska, are stated in the opinion. Mr. Edwin C. Brandenburg, with whom Mr. Clarence A. Brandenburg and Mr. F. Walter Brandenburg were on the brief, for appellant: The carrying of mails arriving over roads not men 222 U.S. Argument for Appellant. tioned in the advertisement for proposals was an extra service for which the appellant was entitled to compensation. Woolverton v. United States, 27 C. Cl. 292; Knox v. United States, 30 C. Cl. 59; Woolverton v. United States, 34 C. Cl. 247, distinguished; and see Utah Stage Co. v. United States, 39 C. Cl. 420; affirmed, 199 U. S. 422. If the contract on its face did not, by its special provisions, require the appellant to carry the mail arriving over roads not mentioned, or under the general provision relating to additional service, then as the contract specifies the particular roads transporting the mail which the appellant was to carry, parol evidence was inadmissible for the purpose of showing that the contract required appellant to carry mail brought to Omaha over other roads not mentioned. By its own terms the contract excluded the mail brought into the Union Station over roads not mentioned in the advertisement and it was not competent to extend, by parol evidence, the duty of the appellant to such roads; and further, if such evidence was competent, it shows the appellant fully performed his duty as to making inquiry and that after so doing he was not informed and had no knowledge that the Government, by its advertisement, expected him to carry mail arriving over roads not mentioned therein. On the facts as found by the court below, the action of the Postmaster General in annulling the appellant's contract was without right and unlawful. At the time the Postmaster General annulled this contract the Government itself was in default in respect of the only obligation it assumed, to wit, the payment of the stipulated compensation, and being in default, it had no right to annul the contract. Mason v. Thompson, 94 Minnesota, 472; Graf v. Cunningham, 109 N. Y. 372; Hatton v. Johnson, 83 Pa. St. 222; Meyers v. Gross, 59 Illinois, 439. As the United States itself was in default, it had no VOL. CCXXII -32 Argument for the United States. 222 U. S. right to annul the contract unless such annulment be treated as the exercise of the right to terminate the contract at any time upon allowing the contractor an additional month's pay. If so treated, judgment should have been rendered for the appellant. The record discloses no fault on the part of the appellant. It wholly fails to show any failure on his part to make due inquiry as to the service expected of him, or knowledge in advance of executing the contract, of the relations between the Union Pacific Railroad and the other railroads not mentioned in the advertisement. Otis v. United States, 20 C. Cl. 315. Reasonably construed, and strictly construed certainly so, the service required of the appellant was not covered by his contract. Whether or not the contract was properly annulled, the appellant is entitled to judgment for services rendered. No counterclaim was filed and no damages have been assessed by the Auditor for the Post-Office Department. To offset the amount found to be due the appellant, therefore, it was necessary for the defendant, as with any other litigant, to file a counterclaim if it intended to insist upon one, particularly where, as in this case, the loss sustained by the defendant, if any in fact was sustained, arose after the annulment of the contract. Upon that issue, if presented, the appellant would have been entitled to be heard and was, as a matter of right and justice, entitled to be apprised by the pleadings. Mr. Assistant Attorney General Thompson, with whom Mr. George M. Anderson was on the brief, for the United States: No fraud or deception was practiced on appellant as to the quantity of mails to be carried under his contract to and from the Union Station. The obligation rests upon every man of reasonable prudence and intelligence to properly inform himself before incurring any liability under a proposed contract, and unless fraud or deception has been employed in inducing him to enter into the contract, he will be held to have so informed himself. Dair v. United States, 14 Wall. 1, 6; Dickerson v. Colgrove, 100 U. S. 578. The Postmaster General has the right to require suitable equipment of appellant before commencement of his service under his contract. The Postmaster General was the judge of the proper equipment to be furnished by appellant before commencing the services, and, in the absence of bad faith, his right to annul the contract upon appellant's refusal to provide suitable equipment cannot now be assailed. United States v. Arredondo, 6 Pet. 691; United States v. Cal. & Oreg. Land Co., 148 U. S. 31. The Postmaster General had the right to annul appellant's contract for refusal to obey his instruction. Appellant failed to comply with reasonable requirements, and in accordance with the terms of the agreement, the Department annulled the contract. Slavens v. United States, 196 U. S. 229. The right of the Postmaster General to annul the contract for failure on the part of the appellant to comply with the instructions of the Department clearly embraced the right to withhold payment for services already performed and to relet the contract at appellant's expense. The opinion of the court below presents a careful and clear analysis of what the contract contained. There are no complications about the facts. It is shown that owing to the failure of appellant to perform his contract in accordance with the terms and requirements thereof the Government sustained a loss of over $14,000. MR. JUSTICE LURTON delivered the opinion of the court. The appellant had a four-year contract, commencing |