# United States v. Child Company

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## Dissenting Opinion

    Clifford
United States Supreme Court
79 U.S. 232
United States v. Child Company
APPEAL from the Court of Claims, on a claim by Child & Co., merchants of St. Louis, against the United States for $163,111, as a balance due on a sale of military stores.
The Court of Claims found a case which in the parts material was thus:
1st. In the autumn of 1861, and before the 14th of October of that year, the city of St. Louis being the headquarters of the Department of the West, Major McKinstry, chief quartermaster of the department, under the express orders of Major-General Fremont, commanding the department, purchased stores of the claimants, the fair value of which was $478,119.62, the price charged by the claimants.
The payment of the quartermaster vouchers held by the claimants was suspended by the Secretary of War, in common with all others issued before the 14th October, 1861, by reason of suspected frauds, extravagance, and irregularities in the Department of the West.
On the 25th October, 1861, a military commission, consisting of the Honorable David Davis, of Illinois; the Honorable Joseph Holt, of Kentucky, and Mr. Hugh Campbell, was appointed by the Secretary of War, whose powers and duties were defined to be to report upon all unsettled claims against the military Department of the West that might have originated prior to the 14th of October, 1861.
After the committee had entered upon its investigations, the provost-guard of St. Louis forcibly entered the office of the claimants, and against their consent seized and carried before the commission their vouchers, business papers, and private books of account. The commission examined them all, and at the conclusion of its investigations indorsed upon the vouchers the amounts allowed by it, and ordered that the sum of $163,111 be deducted from the vouchers. The commission also withheld all of the vouchers until the claimants signed a receipt or agreement, not under seal and without consideration, which provided that when the reduced amounts allowed by the commission should be paid, the payment should be in full of all the claimants' demands against the United States. The claimants on their part never submitted their vouchers to the arbitration or decisions of the commission, and did not sign the receipt voluntarily, but under protest and to obtain possession of their vouchers withheld until they should do so.
The claimants after receiving back from the commission their vouchers presented them for payment to the Quartermaster-General, but the disbursing officer of the United States refused to pay the same, on the ground that he had no legal authority to do so, and continued to refuse payment until the enactment by Congress of a joint resolution approved 11th March, 1863:
'That all sums allowed to be due from the United States to individuals, by the commission heretofore appointed by the Secretary of War,' 'shall be deemed to be due and payable, and shall be paid by the disbursing officers in each case, upon the presentation of the voucher, with the commissioners' certificate thereon, in any form plainly indicating the allowance of the claim and to what amount.'
Thereupon the Quartermaster-General 'referred the said vouchers to Major M. S. Miller, quartermaster, for payment, under the above quoted joint resolution of Congress;' and Major Miller, in pursuance of this order, paid to the claimants, upon these vouchers, the amounts allowed by the commission.
The claimants, at the time of receiving payment, made no formal objection or protest, but were required to, and did, sign a receipt not under seal and without consideration, whereby they acknowledged having received such reduced amounts 'in full of the above account.'
Such were the facts as found by the Court of Claims. The court did not find anything about Child & Co.'s having accepted the amount reported as due by the commission, because they would have become bankrupt had they not done so. But in the opinion of the Court of Claims, as given in the official report of the case, the court, in speaking of the receipts which Child & Co. had given for the money, says:
Of these receipts two things may be said: In the first place, the acts of the commission had taken from the claimants their business books of account; had suspended their business transactions; had reduced them to the verge of bankruptcy, and had been constantly met by the claimants' repeated and most earnest protests.
The Court of Claims, as a conclusion of law upon the facts found in their finding, decided,
1st. That the purchases were lawful and valid.
2d. That neither Congress nor the claimants having submitted the controversy to the arbitrament of the commission, the said commission was not possessed of jurisdiction or power to determine the rights of the parties, and that the deductions made by the commission from the claimants' vouchers did not constitute a valid or binding award. And further, that the agreement or receipt, signed by the claimants on receiving back their vouchers, was obtained and exacted by duress of their goods, and was wholly without consideration, and void.
3d. That the joint resolution approved 11th March, 1863, was simply an authority and direction to the defendants' disbursing officers to pay the amounts allowed by the commission; and that the resolution did not ratify the reductions made by the commission from the claimants' vouchers, nor change, nor affect the legal rights and liabilities of the parties. That the payment of the reduced amount made to the claimants under the resolution by the express order of the quartermaster-general, and its acceptance by the claimants, without objection or protest, did not estop or conclude the claimants from seeking legal redress for the balance remaining due upon their accounts; and that the receipts required by the quartermaster at the time of payment, expressing upon their face that a less sum was received than that due, and being without consideration, did not operate as a release of the balance of the claimants' accounts, and were wholly void.
The Court of Claims accordingly decided that the claimants should recover the balance claimed, to wit: $163,111.
From this decision the United States appealed to this court. The case being here, it was remanded at the request of the government to the Court of Claims for certain additional findings, on questions raised. The supplemental findings found:
1st. That the claims of the claimants were never submitted to the commission, either before or after the seizure of the books and papers; but that, before the seizure, the claimants, in pursuance of the published notice of the commission (requiring all claims which had accrued before the 14th of October, 1861, to be presented to it), had in some manner, not shown to the Court of Claims, presented or given notice of their claims against the defendants to the said commission. But that the claimants had not presented their original vouchers, nor any proofs to the commission.
2d. That after the seizure, and while the books and papers were withheld from the claimants by the commission, the claimants did appear before the commission with witnesses; but what the witnesses testified, or whether or not they were produced before the commission to support the claims, did not appear at the trial.
The claim, as the reader will have observed, belonged to a class of demands against the government, originating at St. Louis in the early days of the civil war, and which by order of the President were investigated at the time by a special commission appointed for the purpose. In some respects, therefore, it resembled the cause of United States v. Adams, twice passed on in this court; first on an appeal, the record of which stated that Adams had presented his claim to the commission, and the second after a decision of that appeal by this court, in which decision it was assumed that Adams had 'voluntarily submitted his claims to the adjudication and decision of the said commissioners'-on a motion by Adams to refer the case back to the Court of Claims, because it had erroneously found as a fact, that he had voluntarily presented his claims, whereas, the truth was-as was shown on the motion-that he had not presented them himself at all, but that General Meigs, head of the bureau of a department of this class of claims, had presented them, and that they had been heard ex parte. In the opinion on the appeal (the first case), this court-admitting fully that the commission had no legal authority to compel a hearing before them, and that he might have gone to the Court of Claims-held the fact to be that Adams had 'voluntarily submitted his claims to the adjudication and decision of the said commission,' and adverting to this and to the fact that after the award by the commission of a smaller sum than that claimed, Adams took it and gave a receipt-a document which the government set up as concluding him, while he contended that he was free to explain it-the court declared that:
'In the view we have taken of the case, the giving of the receipt is of no legal importance. The bar to any further legal demand against government does not rest upon this acquittance, but upon the voluntary submission of the claims to the board; the hearing and final decisions thereon; the receipt of the vouchers containing the sum or account found due to the claimant, and the acceptance of the payment of that amount under the act of Congress providing therefor. . . . So far as respects the cases of voluntary submission before the board, we regard the finding followed by acceptance as conclusive as if it had been before the first Court of Claims, and heard and decided there, and the amount found due paid by the government.'
In the second case (the motion to remand), the court say:
'Though it is true that the appellee did not present his claim to the board, as stated in the finding in the record on appeal, it cannot, in view of the original record of the evidence before the Court of Claims, be denied that he made himself a party to the proceedings and took the benefit of the adjustment of his accounts by them, which brings the case within the principle decided in 7th Wallace.'
Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States:
We rely on United States v. Adams. There are no distinguishing facts. The Court of Claims, indeed, in their additional findings in the present case, find that the claim in this case was never submitted to the commission; but while thus finding they proceed to find further, 'that, before the said seizure, the claimants, in pursuance of the public notice of the said commission, had, in some manner not shown to the court, presented or gave a notice of their claims to the said commission.' This last statement contradicts, as matter of fact, the finding that the claims were never submitted, and shows that that was rather a conclusion of law from the facts than a finding of a question of fact, and that upon the facts found by the Court of Claims, it was an erroneous conclusion.
No particular form of submission of claims has been established by the commissioners or by the Secretary of War, and if the claimants had 'in some manner presented or given notice of their claims to the said commission,' such presentation or notice of their claims could constitute nothing but a submission of them for investigation. Moreover, the Court of Claims finds further, 'that the claimants did appear before the said commission with witnesses,' which establishes the fact, that they did actually submit their claims to the consideration of the commissioners.
Whether the receipt given by the respondents to the commission at St. Louis was extorted by duress, or by the illegal withholding of their vouchers, is immaterial. The respondents did get back their vouchers, and they did afterwards, when under no 'duress,' accept the money allowed them by the commission under the joint resolution of Congress, as the Court of Claims admits, without formal protest. This payment of the money, a final settlement, was an accord and satisfaction of the whole demand.
Messrs. H. E. Davis, Bartley, and Casey, contra:
The good faith of the appellees and the fair price of their stores sold, being expressly found, the question is whether the acceptance by them of the amount awarded by the commission bars a recovery of the balance.
The acceptance is not a ratification of the action of the commission, nor a sufficient ground of reversal of the judgment of the Court of Claims.
1st. Because the finding of said commission was not an award.
This conclusion results from the fact expressly found, that the appellees did not at any time present or submit their claims to the jurisdiction or arbitrament of said commission. In the case of United States v. Adams, it was decided that the authority of the commission to decide upon the claim resulted from the voluntary submission of the claimant. That fact being wanting in this case, removes the only foundation upon which an award by the commission can be sustained.
2d. Because the facts found by the Court of Claims are not sufficient to constitute an accord and satisfaction.
In order to support a legal accord and satisfaction, there must be some new consideration moving from the party who sets it up. The payment of part of a debt in consideration of the creditors relinquishing the residue, where the whole debt is due at the time, will not support a plea or averment of accord and satisfaction. This is settled law, since Pinell's case, reported by Coke, followed by Pratt, C. J., in Cumber v. Wayne; also more explicitly by Lord Ellenborough in Fitch v. Sutton, and now firmly established in nearly every State in the Union.

## Notes

* ↑ 4 Court of Claims Reports, 185.
* ↑ 7 Wallace, 463; 9 Id. 554.
* ↑ 7 Wallace, 479, 481.
* ↑ 9 Wallace, 554.
* ↑ 1 Strange, 426.
* ↑ 5 East, 232.
* ↑ 1 Smith's Leading Cases, notes to Cumber v. Wayne.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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