Opinion of the Court.

254 U.S.

not definitely appear. Thereafter and down to March 31, 1913, claimant's newspapers, whether in sacks or in bundles, were alike treated as mail matter by the United States mail transfer clerk, who weighed them all and reported the net weights to the postmaster, and the bundles and sacks were transported to their respective destinations as second-class mail matter. The charge appropriate for such mail matter was regularly made against claimant's deposit and paid by claimant during the entire period. In the spring of 1913 claimant's business manager, having his attention called to the fact that the express bills were small, discovered upon investigation that the bundles of papers labeled "Express" were being transported as second-class mail matter; and the present suit followed. During the period referred to approximately 358,442 pounds of newspapers were transported by the United States mail that were labeled "Express" and had been intended by claimant to be transported by express. Claimant paid thereon the regular second-class mail matter rate of 1 cent per pound, aggregating $3,584.42. The transportation of the same matter by express would have cost claimant $1,792.21.

The Government insists that this court is without jurisdiction to entertain the appeal, upon the ground that the amount in controversy is less than the three thousand dollars specified in the applicable provision, § 242 of the Judicial Code (Act of March 3, 1911, c. 231, 36 Stat. 1087, 1157). It is said that, viewing the claim in the most favorable light, and assuming a mistake was made entitling claimant to recover, the amount recoverable could not exceed the difference between what was paid as postage and what would have been paid had the newspapers been sent by express, that is to say $1,792.21. But, while in its original petition claimant prayed recovery for only the latter amount, in an amendment made by leave of the court it sought a return of the entire $3,584.42, on the

ground that there was a failure of consideration and it was entitled to a return of the whole sum as paid by mistake. The amount in controversy is to be determined by the amended rather than the original petition (Washer v. Bullitt County, 110 U. S. 558, 561-562); and since there is nothing in the nature of the case to prevent a recovery of the entire amount, were claimant's view of the law sustained, the amount claimed is the amount in controversy within the meaning of the jurisdictional act, notwithstanding there may be a defense to a part that would not extend to the entire claim. Barry v. Edmunds, 116 U. S. 550, 560-561; Schunk v. Moline, etc., Co., 147 U. S. 500, 504-505; Vance v. W. A. Vandercook Co. (No. 2), 170 U. S. 468, 472; Smithers v. Smith, 204 U. S. 632, 642–643.

Upon the merits, we concur in the opinion of the Court of Claims that there is no legal basis for a recovery. The money was not paid under any such mistake as to render it inequitable for the United States to retain it. The bundles of newspapers actually were transported as mail by the Government, claimant being charged by the postmaster the amount fixed by law for the service rendered, and paying it without protest. No error is shown to have been made in the weights or in the rate charged. So far as any "mistake" appears from the findings it was that of claimant's agents in causing or permitting the papers to go by mail instead of by express as claimant intended. There is no finding attributing negligence or other fault to the mail transfer clerk; but if there were such and claimant's loss were attributable to it, this would not form a ground for recovery, since the United States has not consented to be sued in the Court of Claims for the torts of its officers or agents. Bigby v. United States, 188 U. S. 400, 404–407; Hijo v. United States, 194 U. S. 315, 323; Tempel v. United Siates, 248 U. S. 121, 129; Ball Engineering Co. v. White & Co., 250 U. S. 46, 57.

Judgment affirmed.

JACKSON, RECEIVER OF THE FIRST CO-OPERATIVE BUILDING ASSOCIATION OF GEORGETOWN, D. C. v. SMITH ET AL.

CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 130. Argued December 17, 1920.-Decided January 24, 1921.

Persons who knowingly join with a receiver in purchasing real estate at a sale made by the trustee of a deed of trust mortgage securing a debt due the receivership, are jointly and severally liable to the receivership for all profits realized from the purchase. P. 588. 48 App. D. C. 565, reversed.

THE case is stated in the opinion.

Mr. W. W. Millan for petitioner.

Mr. Louis Addison Dent for respondents.

MR. JUSTICE BRANDEIS delivered the opinion of the court.

Smith and Wilson were sued in the Supreme Court of the District of Columbia by the receiver of the First Co-operative Building Association of Georgetown, D. C., for the amount of profits made by them and a former receiver of the Association in the purchase at a foreclosure sale and subsequent resale of land mortgaged to secure a note owned by the Association. The Supreme Court held them liable for the full amount of the profits, $743.68, with interest and costs. The Court of Appeals of the District reversed the decree and ordered that the bill be dismissed with costs. 48 App. D. C. 565. A writ of certiorari was granted by this court.. 250 U. S. 655. The question before

us is whether the respondents are liable upon the following facts, and if so in what amount.

In 1908 the Supreme Court of the District appointed William E. Ambrose, a member of its bar, receiver of the First Co-operative Building Association of Georgetown, D. C. Among the assets of the Association so entrusted to the receiver was a note of Schwab for $2,700, secured by a mortgage deed of trust of land. The note being in default, Ambrose as receiver requested the trustee under the deed of trust to advertise the land for sale at public auction. The auction sale was held and a bid of $350 was made by Edwin L. Wilson, a member of the bar; but the trustee withdrew the property from sale because the bid was inadequate. Thereafter it was arranged between Wilson, Ambrose, and another lawyer, John Lewis Smith, who was counsel of the receiver, that the trustee should again advertise the property for sale; that Wilson should at the second sale use his own judgment whether to bid and, if so, what amount; and that, if he should happen to become the purchaser, the three should be jointly liable for the purchase price and any expenses incident to the purchase and should be jointly interested in the property purchased. The second sale was duly advertised. Smith and Ambrose were present, but gave no instructions or directions in regard to the sale either to the trustee or to his auctioneer. Wilson also attended and in the exercise of his own judgment and without previous conference with either Smith or Ambrose bid $491 and became the purchaser of the property. There was no evidence of any improper influence at the sale to prevent competition or to close competitive bidding or to bring about the sale to Wilson in preference to any one else. On the contrary it affirmatively appears that the sale was fairly conducted; that there was competitive bidding; and that the property was finally knocked down to the highest bidder.

Within a few days after the second sale Wilson and

Smith found, through the aid of real estate agents, a purchaser named Kite who was willing to pay $1,400 for the land. In order to convey a good title it was necessary to clear the land of tax liens and an outstanding tax title. This required $550-that is, $59 more than Wilson had bid. He voluntarily raised his bid by that amount. The land was conveyed by the trustee to Wilson and by Wilson to Kite, the deeds being recorded simultaneously when Kite paid the $1,400. Of this amount $652.32 was used to discharge taxes, tax liens and expenses of sale. The balance, $743.68, was divided equally between Wilson, Smith and Ambrose individually. Wilson had paid out in making the purchase no money of his own or theirs. The estate of which Ambrose was receiver got nothing, as the amount required to discharge the tax liens exceeded the amount bid by Wilson. Much later the facts were brought to the attention of the Supreme Court of the District. Ambrose resigned as receiver; Jackson was appointed in his stead; and as receiver brought this suit against Wilson and Smith to recover the profits which had been made by them and Ambrose.

Ambrose had, as receiver, the affirmative duty to endeavor to realize the largest possible amount from the Schwab note. Baker v. Schofield, 243 U. S. 114; Robertson v. Chapman, 152 U. S. 673, 681. To this end it was his duty to endeavor to have the land, when sold under the trust deed, bring the largest possible price. J. H. Lane & Co. v. Maple Cotton Mill, 232 Fed. Rep. 421. When he agreed with Smith and Wilson to join in the purchase if Wilson should become the successful bidder, he placed himself in a position in which his personal interests were, or might be, antagonistic to those of his trust. Michoud v. Girod, 4 How. 503, 552. It became to his personal interest that the purchase should be made by Wilson for the lowest possible price. The course taken was one which a fiduciary could not legally pursue. Magruder v. Drury,