#### SMITH'S CASE. Samuel B. Smith, appellant *v.*The United States, appellees.

(5 Court Claims R., p. 496. Not reported in Wallace.)

*On the claimant's Appeal.*

*A contract for the sale of a/rms is revolced by the War Department before performance, and the case sent to the*Holt-Owen Commission. *The contractor proposed a compromise to the effect that the Government shall receive the arms and pay a reduced price. It is accepted, and the arms cere delivered and paid for. The contractin' then brings his action for the breach of the contract. The Comt of Claims decides that the contractor’s assent to the final compromise brings the case within the decision of the Swpreme Corn-tin*Adams’ Case. *Judgment for the defendants. The claimant appeals.*

'The decision of the Court of Claims affirmed without an opinion being rendered by the Supreme Court.

*The Reporters1*statement of tbe case:

The court below found, among others, the following facts, on which the case turned:

The claimant from time to time appeared before the commission and gave testimony and made explanations and arguments in his case.

On the 7th day of May, 1862, the claimant addressed to the commission the following communication:

“ Washington, *May*2,1862.

*“*Gentlemen : In accordance with your suggestion of yesterda3r that I should propose a compromise in the matter of my contract for 40,000 arms, dated December 11,1861, and in order to obtain a final recognition of my contract and a settlement with the Government, I make the following proposition:

“ If the Government will receive and pay for all the arms which I now have in New York, and which may arrive there under my contract, the whole number not to exceed 20,000,1 will reduce the contract price from $20 per gun to $16.50 (sixteen dollars and fifty cents) per arm, releasing the Government from the balance. In connection with this proposition, and as *68a part thereof, I will state that while my sample gun has upon it leaf-sights, I am informed by the shippers that some of my lot of arms has upon them a sight known as the block-sight, and I desire that they be received and paid for at the same price. I offer this as a compromise in order to obtain the means to meet obligations incurred in carrying out my contract of the date above named, and I most respectfully ask a prompt reply.

“Yours, respectfully,

“Samuel b.'smith.

“ Messrs. Holt & Owen,

“ *Commissioners on*Contracts, c£c.”

“ Referring to the above letter, and learning from the commissioners that they are only willing to settle at $16 (sixteen dollars) per arm, I hereby agree to accept that price, as per terms of letter, and execute such releases as may be necessary.

“ Yours, respectfully,

“ SAMUEL B. SMITH.

“Messrs. Holt & Owen,

“ *Commissioners on*Contracts, t&c.”

And the proposition so submitted by the claimant was accepted by the said commission according to its terms.

The claimant, after the said commission had reported its action in the claimant’s case to the War Department, tendered to the United States 9,667 riñes with the usual appendages, which were duly inspected and received; and the claimant received payment for the said 9,667 rifles and appendages at the rate of $16 for each rifle.

*Mr. James Hughes*for the claimant, appellant:

The Secretary of War has no power, under the law, to make a compromise in such a case as this; nor can he delegate such powers to others. His action in this case operated upon an executory contract, and not a claim, and constituted a breach of the contract, and was wholly unwarranted by law. The Secretary of War did not, by his order of March 13,1862, delegate to the commission the power to make compromises. By the terms of the contract, the only right reserved to the Government, to revoke or annul it, was for failure to deliver the arms *69as specified.' The cases of *The United States*v. *Child &*Co., (12 Wallace, 232,) and *Theodore*Adams, (7 Wallace, ’463,) do not rule this case, owing to dissimilarities in contracts sued upon, the action of tbe War Department and the commission.

But if it should be held by this court that the repudiation or suspension of the claimant’s contract, before it was executed, without fault on his part, converted his contract into a claim for unliquidated damages, then' it is insisted that such claim could only be adjusted and settled by the accounting officers of the Government in the regular course of business,, and there is no power in any head of a Department, or other executive officer, to mate a valid compromise, or one that would be binding on the claimant. All such acts are without authority of law, and against public policy, as well as oppressive to the citizen. The Government can acquire no rights of action or valid grounds of defense to any just claim founded upon such compromise.

. *Mr. Assistant Attorney-General McMichael*for the United States, appellees:

The Court of Claims have found, as a fact, that the proposition so submitted by the claimant was accepted according to its terms; that he delivered 9,667 riñes, which he was paid for at the rate of $16 for each rifle, and that no greater number of rifles was tendered by him.

The proposition to settle in the manner described was made by the claimant himself, and included a release of the Government from the prior contract; and he confirmed the new agreement and the release from the old one by delivering a. number of arms, and receiving payment at $16 per arm, as he had proposed. The Government was ready and willing to carry out its part of the settlement, and the neglect was his own in refusing to conform to its terms. In concluding the opinion of the Court of Claims, delivered in the case, Chief Justice Casey said: “We think this case is ruled by that of *United States*v. Adams, (7 Wall., 463.) In many of its leading facts and features it is similar to that one, and in the proof of voluntary submission to the commission, and assent to its decision as a final compromise, it is much stronger.” (5 C. Cls. R., 496.)

The judgment of the Court of Claims was affirmed by the Supreme Court, no opinion being delivered.