#### MASON'S CASE. William Mason, appellant, *v.*The United States, appellee.

(6 Court of Claims R., p. 57; Not yet reported in Wallace.)

*On the claimant’s Appeal.*

*In January,*1862, *the Chief of Ordnance, by direction of the Secretary of War, invites a manufacturer to make*100,000 *Springfield, muskets at*$20 *apiece. The manufacturer accepts the offer, and, immediately proceeds to change his machine works into an armory at a cost of*$75,000. *In March,*1862, *a new Secretary sends all contracts relating to ordnance before the*Holt-0 wen Commission. *The commission, against the remonstrances of the manufacturer, orders the number of arms to be reduced to*30,000, *and requires him to enter into a written contract for that quantity. The Chief of Ordnance transmits such a contract to the claimant, with a request that he will execute it if he should “*accept tlie order as confirmed by the commission.” *Me does execute and return it to the Chief. Subsequently he delivers*30,000 *muskets, for which he is paid in full. Suit is then brought for a breach of the original contract in not allowing him to deliver*100,000. *The Court of Claims decides that the claimant might have stood on his legal rights and have recovered under the original contract, but that having executed the neiv contract and de**126*livered, the reduced quantity, the original agreement must he deemed to have been changed hy the voluntary act of the parlies. Judgment for the defendants. The claimant appeals.*

I. Where the Government enters into a contract for the purchase of 100,000 muskets, and subsequently the *Solt-Oioen Commission,*against the remonstrances *of*the contractor, orders that the number he reduced *to*30,000, and the Chief of Ordnance transmits a written contract for 30,000, with a request that the contractor will execute and return it if he *“ accept the order as confirmed hy the commission,”*and he does so, and subsequently delivers the reduced number, (for which he is paid,) it must he deemed a voluntary acceptance on his part of the modification, and a substitution of the one contract for the other, notwithstanding his remonstrances. The Chief Justice dissenting.

II. The acceptance of a smaller sum for a greater without intimidation, and with a full knowledge of the circumstances, does not constitute duress and the case is not changed by the facts that the contractor was induced hy want of money to accept the smaller sum, and was at the time, being before the reconstitution of the Court of Claims, without a judicial remedy to enforce his legal right to the larger sum.

*The Reporters’*statement of the case:

The facts appear in the following findings of the court below:

I. The defendants, on the 7th January, 1862, through their Chief of Ordnance, General James W. Ripley, and by the express direction of the Secretary of-War, made in writing this offer to the claimant, to wit:

“I offer you an order for fifty thousand (50,000) muskets, with appendages, of the Springfield pattern, on the following terms and conditions, viz: These arms are to be forwarded, with the regular appendages, and are to be in all respects identical with the standard rifle musket made at the United States armory at Springfield, Massachusetts, and are to interchange with it and with each other in all their parts. They are to be subject to inspection by United States inspectors, in the same manner that the Springfield arms are inspected, and none are to be received or paid for but such as pass inspection ami are approved by the ^United States inspectors. These fifty thousand (50,000) arms and appendages are to be delivered at your armory as follows, viz: Not less than (1,000) one thousand in each of the months of July, August, and September, 1862 not less than (2,000) two thousand in each of the months of October and November, 1862; not less than (3,000) three thousand in December, *1862;*and not less than (4,000) four thou*127sand per month thereafter, until the entire fifty thousand shall have been delivered; and you are to have the right to deliver more rapidly than according to the number of arms before specified, if you can do so. In the case of any failure to make deliveries to the extent and at the times before specified, you are to forfeit the right to deliver whatever number may be found deficient for the month in which the failure occurs. All the arms and appendages are to be delivered by you; and this-order, if transferred to another party, is to be thereby forfeited. Payments are to be made, in such funds as the Treasury Department may provide, for each delivery, on certificates of inspection and receipt by the United States inspectors, at the rate of twenty dollars ($20) for each arm, including appendages. All these arms and appendages are to be packed by you in cases of the regular pattern, with twenty (20) muskets and appendages in each box, for which a fair price, to be determined by the inspector, will be allowed.

“ It is further directed by the War Department that double the number of arms and appendages, viz, one hundred thousand, will be received, if manufactured at your establishment, in Taunton, Massachusetts, and delivered within the times before specified for the delivery of the 50,000 arms and appendages. All the other terms and conditions of this order remaining unchanged for the additional 50,000.”

On the 20th January, 1862, the claimant in writing duly accepted the foregoing order, and his acceptance thereof was duly received by the defendants’ Chief of Ordnance.

II. The claimant immediately proceeded to make changes of machinery in his machine-works, and to do whatever was necessary to insure the full and complete performance of the agreement set forth in the first finding of fact; and the claimant was able and willing to perform according to the terms of his agreement. His expenditures for changing his machine-works into an armory, as required by the agreement, amounted to seventy-five thousand (75,000) dollars, and the profits which he would have made upon the muskets ordered, if he had been allowed to perform, would have amounted to $5.25 per musket.

III. On the 13th March, 1862, the Secretary of War, by an order of the War Department, “ Ordered, That the Honorable Joseph Holt and the Honorable Kobert Dale Owen be, and they are hereby, appointed a special commission to audit and adjust *128all contracts, orders, and claims on tbe War Department in respect to ordnance, arms, and ammunition; their decision to be final and conclusive as respects this Department on all questions touching the validity, execution, and sums ‘due or to become due upon such contracts, and upon all other questions arising between contractors and the Government upon such contracts,” &c., &c.

On the 15 th May, 1862, the Holt-0 wen commission, without the consent and against the remonstrances of the claimant, decided and reported to the Chief of Ordnance, “ That the order to Mr. Mason be confirmed, subject to all its terms, to the extent of 30,000 muskets, upon condition that he shall, within fifteen days after notice of this decision, execute bond, with good and sufficient sureties, in the form and with the stipulations prescribed by law and the regulations, for the performance of the contract, as thus modified, resulting from said order and acceptance; and, upon his failure or refusal to execute such bond, then the said order shall be declared annulled and of no effect.”

On the 30th of May, 1862, the Chief of Ordnance transmitted a copy of the foregoing decision to the claimant, and also the contract and bond contemplated .by the commission in its decision, with the request that the claimant would execute and file them within fifteen days after their receipt by him, if he should “accept the order as confirmed by the commission.” The claimant thereupon executed such written contract on the 25th day of June, 1862, whereby he contracted and engaged to furnish to the defendants 30,000 muskets of the Spring-fieldjpattern.” This contract was performed by both the parties, and no other muskets were ever furnished by the claimant to the defendants.

*Mr. Thomas Wilson*for the claimant, appellant:

This case is not like those of *Adams,*(7 C. Cls. It., p. 58, 471,) *Child, Pratt & Fox,*(Id., 209,) or *Justice’s,*(ante., p. 37.) In those cases the claimants went before the commission averring that they had *performed*their contracts. When Mason’s case was before the commission there could not have been any averment of performance, for the first delivery under his contract was not required until July, 1862. In those case's the claimants made a *claim*against the United States for money due. Mason *129made no *claim*against the United States. In those cases the United States *disputed*their claims. In Mason’s case there was no claim to dispute. In those cases after the award was made by the commission of a certain sum found to be due to the •claimants, that sum was tendered by the United States to them as in full satisfaction and by way of compromise. In Mason’s case there was no *sum*found to be due, there was no *tender*made to the claimant, there was no *agreement*that he would make an acceptance as in full satisfaction, nor was there any agreement that could make it either in law or fact a compromise.

But, in order to make this compromise valid or binding, the acceptance by the claimants of the sum tendered under it must have been free and voluntary, and must not have been obtained by either fraud or oppression, (1 Story’s Eq. Juris., sec. 239, 340, 345a,) nor by extortion — (Id.;) *White*v. Heylman, (10 Casey, 142/) *Wahefield*v. *Neiobon,*(6 Q. B., 281;) *Cartwright*v. *Rawley,*(2 Exch., 723.)

As to payments made or promises given under an alleged compromise enforced by duress of goods or from thé necessities of the party, see the following: *Astley*v. Reynolds, (2 Str., 915;) *Atlee*v. Bachhouse, (3 M. & W., 643 ;) *Oates*v. *Hudson,*(5 E., L. & E. Bep., 469;) *Chase*v. *JDwinel,*(7 Green., 134;) *Shaw*v. *Wood,*(7 Barn. & Cress., 73;) *Parlcer*v. *6. W. R. R. Co.,*(7 Mann. & Gr., 253;) *Ripley*v. *Gelston,*(9 Johns. Bep., 201;) *Clinton*v. Strong, (19 Johns. Bep., 370;) *Mliott*v. *Swartioout,*(10 Peters, 137;) *Ashmole*v. *Waimvright,*(2 Q. B., 837;) *Smith*v. *Bromley,*(2 Doug., 695;) *Fleetwood,*v. *Hew Yorh,*(2 Sandf., 475 ;) *Harmony*v. *Bingham,*(1 Duer, 210, 228, 229; 2 Ker-nan, 109.)

Now, thé point I make — and it is one that has not before been decided or passed upon by this court — is that at the time Mason accepted this new contract there was no method or mode provided by which he could enforce his rights. There was no court in the country having any jurisdiction to afford him any relief, or before which he could be heard to ask the enforcement of his rights. The Court of Claims had not then been established. So if Mason had the *right*to reject the new contract, and also the *right*to insist upon the obligations of the old, yet there was no place, court, or forum before which he could enforce these *rights.*This court decides the offer and acceptance to be valid and binding as a compromise when made *130between private persons, because the offeree is free to reject the offer, and that he has his remedy over against the offerer for his alleged breach of contract. But Mason was without remedy in this respect. The defendant had theretofore insisted upon its sovereign rights and refused to allow Mason or any one else to bring suit against it.

*Mr. Assistant Attorney-General Mill*for the United States, appellees. ' '

Mr. Justice Oueford

delivered the opinion of the court:

Parties having claims against the United States for labor or service, or for personal property or materials furnished, which are disputed by the officers authorized to adjust the accounts, may compromise the claim and may accept a smaller sum than, the contract price; and where the claimant voluntarily enters, into a compromise and accepts a smaller sum and executes a discharge in full for the whole claim, he cannot subsequently recover in the Court of Claims for any part of the claim voluntarily relinquished in a compromise.

Mason contracted to manufacture and deliver 50,000 muskets, with appendages, of the Springfield pattern. They were to be in all respects identical with the standard rifle-musket made at the national armory, with the regular appendages, and were to be so constructed as to interchange with that pattern and with each other in all their parts/and they were to be subject to inspection in the same manner as the arms are which are manufactured at the national armory; and the stipulation was that none should be received except such as passed' inspection and were approved by the regular inspectors. Deliveries were to be made at the times and in the quantities-therein specified, and payments were to made, in such funds as the Treasury Department should provide, on certificates of inspection and receipt by the inspectors, at the rate of *$20 for*each arm, including appendages.

Information was also communicated to the contractor by the War Department that double the number specified in the contract would be received, if manufactured at the contractor’s establishment and delivered at the times specified for the delivery of the first 50,000 arms, upon the same terms and conditions as'those specified in that contract.

*131On tbe 20th of January, 1862, tbe claimant accepted tbe offer to manufacture and deliver tbe second 50,000 muskets and appendages, as proposed in that offer, and duly notified tbe Chief of Ordnance of bis acceptance of tbe same in writing. Pursuant to that arrangement tbe claimant proceeded to make changes in bis machine-works, and to do whatever was necessary to enable him to perform bis agreement, and the- Court of. Claims finds that he was able and willing to perform tbe same, and that be expended $75,000 in changing bis machine-works into an armory for that purpose, and that if be bad been allowed to fulfill the agreement bis profits would have amounted to $5.25 per musket.

Complaint is made that the officers of the United'States prevented the claimant from performing his contract, and it appears that the Secretary of War, on the loth of March, 1862, by an order of that, date, appointed a special commission, consisting of two members, to audit and adjust all orders and claims on the War Department in respect to ordnance, arms, and ammunition, providing in tbe same order that tbeir decisions should be final and conclusive upon the Department on all questions touching tbe validity and execution of the contracts, and tbe sums due or to become due upon tbe same, and upon all other questions arising out of the contracts between the contractors and tbe Government.

Whether the claimant ever appeared before the commission, does not appear, but it does appear that the commissioners, on tbe 15th of May, in the same year, without the consent and against the remonstrance of the claimant, decided and reported to the Chief of Ordnance that the contract of tbe claimant be confirmed, subject to all its terms, to tbe extent of 30,000 muskets, upon the condition that be, the claimant, shall, within fifteen days after-notice of tbe decision, execute a bond, with good and sufficient sureties, in the form and with the stipulations prescribed bylaw and the regulations in such cases, for tbe performance of the contract as thus modified, and that the contract shall be declared null and of no effect in case he fails or refuses to execute such a bond.

Due notice was given of tbe decision to the claimant, and the Chief of Ordnance transmitted to him the draft of the contract and bond contemplated by the decision, with the request that he would execute and file the same within fifteen days from their-*132receipt *if he should accept the contract as confirmed by the commission;*and the finding of the Court of Claims shows that be executed the written contract whereby he contracted and engaged to furnish to the United States 30,000 muskets of the Springfield pattern; and the Court of Claims also finds that the contract was performed by both parties, and that no other muskets were ever furnished to the United States by the claimant.

Much discussion of the case is certainly unnecessary, as it is as clear as any proposition of fact well can be that the claimant voluntarily accepted the modification of the contract as suggested by the commissioners, and that he executed the new contract in its place, which he must have understood was intended to define the obligations of both parties. His counsel suggest that he accepted thé new contract without relinquishing his claim for damages, arising from the refusal of the United States to allow him to furnish the whole 100,000 muskets, but the court is unable to adopt that theory, as it is quite clear that he could not have acted with any such motives consistent with good faith toward the War Department, as he must have known that the Chief of Ordnance supposed when he, the claimant, returned the written contract duly executed, that the whole matter in difference was adjusted to the satisfaction of all concerned.

Parties are bound to good faith in their dealings with the United States as well as with individuals, and the court is of the opinion that no party in such a case could be justified, after accepting such a compromise and executing such discharge, in claiming damages for a breach of the prior contract which had been voluntarily modified and surrendered, unless the new contract was accepted under protest or with notice that damages would be claimed for the refusal of the United States to allow the claimant to fulfill the contract which was modified in the new arrangement.

It is contended by the appellant that the case is different in principle from the case of *United States*v. *Adams,*(7 C. Cls. R., p. 58,) and the other cases of a corresponding character decided by this court, and the court is inclined to the same opinion, as it is a iilain case of voluntary adjustment between the parties, which all courts hold is final and *conclusive.*— United *States*v. *Child,*(7 C. Cls. R., p. 209;) *United States*v. *Justice,*(ante, p. 47.)

*133None of those cases proceed upon the ground that such a commission possessed any judicial power to bind the parties by their decision, or to give the decision any conclusive effect. Nor can such a commission compel a claimant to appear before them and litigate his claim, but if he does appear and prosecute it, or subsequently accepts the terms awarded as a final settlement of the controversy, without protest, he must be understood as having precluded himself from further litigation.

Attempt is made in argument to show that the adjustment in this case, so far as the claimant is concerned, was the result of duress, but the charge is wholly unsupported by evidence of any kind, except that the United States proposed to annul the old contract if the claimant refused to accept the modification, which is wholly insufficient to establish such a charge.

Apart from that, it is also suggested that the claimant at that time could have no remedy by suit against the United States, as the transaction preceded the passage of the law establishing the Court of Claims, but he might have applied to Congress for relief, as all other claimants were compelled to do from the organization of the Government until the law was passed allowing such parties to prosecute suits against the United States.

Duress, if proved, may be a defense to an action, and it would doubtless be sufficient to relieve a party from the effect of compromise which was procured by such means, but the burden of proof to establish the charge, in every such case, is upon the party making it, and if he fails to introduce any such evidence to support it, the presumption is that the charge is without any foundation.— *United States*v. *Hudson,*(10 Wall., 409;) *Brown*v. *Pierce,*(7 Wall., 214;) *Baker*v. *Morton,*(12 Wall., 157.)

Acceptance from the Government of a smaller sum than the one claimed, even in a case where the amount relinquished is large, does not leave the Government open to further claim on the ground of duress, if the acceptance was without-intimidation and with a full knowledge of all the circumstances; and the case is not changed because the circumstances attending the transaction were such that the claimant was induced from the want of the money to accept the smaller sum in full, which is not proved in this *ease.*— United *States*v. *Child,*(7 C. Cls. R., p. 209.)

*134Examined in any point of view, we think the decision of the Court of Claims is correct.

Decree affirmed.

Mr. Chief Justice Chase

dissenting:.

I am unable to concur in the opinion just read. The original contract was honestly and fairly made without taint of fraud. This is not disputed. Large preparation at great expense was made by the claimant for the fulfillment of it on- his part. It was violated by the United States without reasonable cause, as I think, as 'expressly found' by the Court of Claims, without the consent and against the remonstrances of the claimant. A modified contract, so called, but really a second contract, was then made between the parties, which was fulfilled on both sides; but there is nothing to show that this contract was freely made, or made at all by the claimant in place of the first, or that payment of the sums due under it from the United States was accepted by him in satisfaction of damages for the breach of the first. I think that the United States are not absolved in their dealings with citizens from the obligations of honesty by which individuals are usually controlled, and that the claimant is entitled to damages.