#### JUSTICE'S CASE. Philip S. Justice, appellee, *v.*The United States, appellants.

(14 Wallace Reports, p. 535.*)

*On the defendant’s Appeal.*

*A contractor, during the war, offers*“ to supply the Ordnance Department -with four thousand rifled-muskets similar in style and finish to the sample deposited.” *The ordnance-officer to whom the offer is made refers it to the Department with his own statement that the sample is a good, serviceable arm. The Ordnance Department authorizes him*“to accept Mr. Justice’s proposi*38tion,” “ ■with the express condition that they are to he delivered within the time specified.” *The ordnance officer writes to the*contractor: *“*I am authorized to accept your proposal to furnish four thousand rifled-muskets, equal in all respects to the sample deposited with me.” *The contractor famishes the muskets. They are inspected under the supervision of tTie ordnance officer, the usual vouchers given, and the arms issued to troops in the field. The troops complaining of them, a re-inspection is ordered, and they are reported as umservicedble. One voucher is unpaid, mid the War Department refers it to the*Holt-Owen Commission. *The commission hears the contractor and orders a deduction from the voucher to he made for all of the arms sold. The contractor procures a rehearing and obtains an additional allowance. The amount awarded is paid to him by Ireasury drafts. Se accepts them without protest, hut gives no receipt or release. Se brings his action to recover the balance. The Court of Claims finds the fact that the arms equaled the sample, and gives judgment for the claimant. The defendants appeal.*

I. The *Soli-Owen Commission,*appointed hy the' Secretary of War to pass upon disputed claims for arms and ordnance during the rebellion, possessed no judicial power.

II. Where a party whose claim was disputed by the War Department went before the *Soli-Owen commission,*participated in the proceedings and took the sum found to be due without protest, be cannot afterward be allowed to say that be did not accept it in full satisfaction of bis demand. And it makes no difference that bis agreement was simply to furnish arms equal to a certain sample, and that the court below has found that the arms furnished did equal the sample.

III. Where a commission has awarded a contractor less than the contract-price of the goods furnished, be can refuse to roceive the award, or be can accompany bis receipt of it with a proper protest. The protest is necessary to inform, the Government that the compromise is rejected. If the money then be paid, the claimant will be free to litigate the matter in dispute, and the status of the parties will not be affected by anything-which transpired before the commission.

*The 'Reporters'*statement of the ease:

The Court of Claims found the following facts :

1. The subjoined proposition was addressed by the claimant to Lieutenant T. J. Treadwell, then commanding Frankford Arsenal, in Philadelphia.

“ Philadelphia, *August*12,1861.

“ I propose to supply the OrdDan.ee Department of the United States with four thousand rifled muskets, caliber T6(,9fl of an *39inch, similar iu style and finished to the sample deposited with you, at twenty dollars each.

“ Yery respectfully,

*u*PHILIP S. JUSTICE.

“ Lieutenant T. J. Treadwell.”

To this proposition the following correspondence took place, in which we find the contract:

“ Frankford Arsenal, *August*13,1861.

“ General : I have the honor to state that I have accepted the proposal of Mr. Justice, of Philadelphia, to furnish the United States one thousand rifles, caliber .58, with sword-bayonets, five hundred to be delivered in ten days, and the balance by the first day of September, at the rate [of] $20 apiece, and $1.50 for packing-boxes, to be inspected after a sample furnished me. These, I think, are fine arms, and, in my opinion, much the best I have seen offered at so low a price. I also inclose a proposition from Mr. Justice to furnish rifle-muskets, caliber .69, and sabers. I have examined a sample of the musket, and it is a good,, serviceable arm, caliber .69, clasp-bayonet, long-range sight, original percussion-barrel, and well finished. I think it would be desirable to secure these arms. Mr. Justice’s proposition is explicit in point of time and numbers, and • I respectfully submit it for your decision. Some of the arms furnished by Mr. Pondir have no half-cock; equal to the sample in other respects. Shall these be received or rejected ?

“ Respectfully, your obedient servant,

“ T. J. TREADWELL,

“ *First Lieutenant of Ordnance.*

“ General J. W. Ripley,

“ *Ordnance*Office, Washington, D. 0.”

“ Ordnance Office, War Department,

“ *Washington, August*16, 1861.

*u*Sir: Your letter of the 13th instant is received. You are authorized to accept Mr. P. S. Justice’s proposition of 12 th August, for four thousand rifled muskets, caliber .69, and five thousand cavalry sabers, with the express condition that they are to be delivered in or within the time specified; otherwise, the Government is to be under no obligation to take them, but may or may not do so at its pleasure. Make no agreement for *40arms to arrive. The arms of Mr. Pondir, or any others, without the half-cock", will not be safe for use, and should not be received.

“ Respectfully, your obedient servant,

“JAS. W. RIPLEY,

“ *Brevet Brigadier-General.*

“ Lieutenant T. J. Treadwell,

“ *Frarikford*Arsenal.”

“ Franeford Arsenal, *August*17,1861.

Sir : I am authorized by the Ordnance Department to accept your proposal of August 12, to furnish for the United States four thousand rifled muskets, caliber T<y>0- of an inch, equal in all respects to the sample deposited with me, at twenty dollars each, packed in suitable boxes of twenty each, for transportation; the whole order to be filled by the 1st day of January, 1862, and at the rate of one thousand per month after the 1st of September. Also, four thousand sabers, like the pattern, United States cavalry saber, subject to Government inspection, at six dollars and seventy-five cents each, and packed in suitable boxes of fifty each, for transportation; the' whole order for sabers to be delivered at the rate of five hundred per week after the 1st day of September, until completed.

“ It being understood that if the muskets and sabers are not delivered within the time specified, the Government will be under no obligation to take them, but may or may not do so, at its pleasure. Please notify me of your acceptance of the above order and conditions, in writing, and push the work forward with dispatch.

“ Very respectfully, your obedient servant,

“T. J. TREADWELL,

“ *First Lieutenant of Ordnance.*

“ P. S. Justice, Esq.,

“ *Philadelphia.”*

2. Under these agreements, the claimant delivered to the United States at the Frankford Arsenal, from time to time, 2,469 rifles, with sword-bayonets, caliber of an inch; and 2,174 rifled-muskets, caliber *ffg*of an inch, with angular bayonets, all of which were inspected, as delivered and received, by Lieutenant Treadwell, under his official signature that they had been duly inspected and approved.

*41These arms furnished by claimant were not in all respects similar to the sample arm, but, on an average, not inferior to it which was far from being a standard or first-class arm of the United States. It was not equal to the Springfield rifle, and the Justice arms were far from being a first-class arm.

4. All the arms which were from time to time inspected and approved, except 350 rifles with sword-bayonets, 472 rifled, muskets with angular bayonets, 362 cavalry sabers, and 10 Whitney’s revolving-pistols with appendages, were received and paid for as delivered, at the contract-price.

5. On the 19th of March, 1862, and after all the arms except those mentioned above had been received and paid for, Lieutenant Treadwell issued and delivered to the claimant the following voucher:

“I hereby certify that I have, between January 27 and February 15, 1862, inspected and approved three hundred and fifty (350) rifles with sword-bayonets, four hundred and seventy-two (472) rifled-muskets with angular bayonets, three hundred and sixty-two (362) cavalry sabers, and ten (10) Whitney’s revolving-pistols, with appendages, purchased of Mr. Philip S. Justice, of Philadelphia, for the United States Ordnance Department, under orders dated Frankford Arsenal, August 12 ¿nd 17, 1861, and instructions dated Ordnance Office, August 16,1861, and January 6,1862.

“And I further certify that the said rifles, rifled muskets, sabers, and pistols are good, serviceable arms, fit in all respects for use in the field, to be paid for at the rate of twenty dollars ($20) each for the rifles, and rifled-muskets, six dollars and seventy-five cents ($6.75) each for the cavalry sabers, and eighteen dollars ($18) each for the Whitney’s revolving pistols, including appendages, packed in seven (7) boxes valued at seventy-five (75) cents each, and forty-one (41) boxes valued at two dollars and fifty cents ($2.50) each.

“ Given under my hand at the Frankford Arsenal, this 19th day of March, 1862.

“T. J. TEE AD WELL,

*“JFirst Lieutenant of Ordnance.”.*

The court also find the following fact, connected with inspection :

“ Feaniceord ARSENAL, *March*28,1862.

*“*General : I have the honor to inclose herewith copies of *42statements of tbe inspection of rifles and rifle-muskets received at this arsenal from P. S. Justice, of Philadelphia.- The bulk of these arms were inspected by Mr. Wilson, late foreman (I think) at Harper’s Ferry armory, and after he left his situation here the inspection was made by Mr. Thomas. Daffin, who had previously assisted Mr. Wilson. These statements* show the ■manner in which the inspection was made, and the opinion of the inspectors as to their serviceableness and fitness for use in the field. My instructions to them were to inspect the arms, and reject all that in their opinion were not good and serviceable, and in all respects fit for use in the field. Having entire confidence in their ability and integrity, I think these instructions were complied with. These arms were offered to me at a time when the demand for arms (especially rifled arms) was most imperative, and it was deemed desirable to accept them, to meet in part the pressing demand. Comparing the arms with those of our own manufacture, none would pass inspection, and it was not supposed they should be subjected to any such standard, but that all that were passed on inspection would prove good and serviceable, was believed. Examining two boxes of these arms in store, I do not find them to have the radical defects complained of, nor can I account for the very different report of their inspection at Camp Hamilton and that made to me by my inspectors; especially I cannot understand how the arms should gauge correctly here, and be found there to vary between .65 and .70 inch in caliber. I find the sights were soldered on, but on tapping twenty of them with a hammer sufficiently hard to dent them, some were found to come off, or were started.

“The letters inclosed with yours of the 24th instant are herewith returned.

“Very respectfully, your obedient servant,

“ T. J. TKEADWELL,

“ *Mrst Lieutenant of Ordnanee.n*

6. Three regiments, the Fifty-eighth, Eighty-eighth, and Ninety-first Pennsylvania Volunteers, had been armed with the muskets delivered by the claimant, and some time after these arms were in their hands serious complaints came up from all three of the regiments to the Ordnance Department that these arms were unserviceable.

*437. In response to these complaints, re-inspections of the arms in the hands of these three regiments were directed, which resulted as shown by the following reports of the several inspecting officers:

* “Fort Monroe Arsenal, Va.,

“ *March*20,1862.

*ie*Sir : In compliance with verbal orders received from you, I have visited Camp Hamilton and inspected the arms of the Fifty-eighth Begiment Pennsylvania Volunteers, stationed at that post.

*u*This regiment is armed with rifled-muskets, marked on the barrel 1P. S. Justice, Philadelphia/ and vary in caliber from .65 to .70. I find many of them unserviceable and irreparable, from the fact that the principal parts are defective. Many of them are made up of parts of muskets to which the stamp of condemnation has been affixed by an inspecting officer. In many eases there is evidence of an attempt having been made to obliterate the letters £0’ and ‘ B.’ None of the stocks have ever been -approved by an officer, nor do they bear the initials of any inspector. They are made of soft, unseasoned wood, and are defective in construction. A few of the barrels have been in service before, and bear the usual marks ‘ V/ ‘ P,’ and ■:U. S.’ Most of the rest, however, abound in flaws, and the rifling in nearly all is but a poor attempt. The grooves extend in many cases but a few inches from the muzzle, leaving the remainder of the barrel with a smooth bore. The sights are merely soldered on the barrel, and come off with the gentlest handling. Imitative screw-heads are cut on their bases. The bayonets are made of soft iron, and, of course, when once bent, remain ‘ set.’ In some instances where the bayonets have been marked *‘*0/ deep indentations have been made in the attempt to erase this letter. The locks are of very poor construction— screws, springs, and swivels being unserviceable. The guard-bows are insecurely fastened, and can be separated from the stock with ease. There are no band-springs, and when the stoek is dry the bands drop off. The thread of the screw on the rammer is improperly cut. On account of the difference of caliber existing in these arms, it is impossible to supply them with suitable ammunition.

*il*I would' respectfully recommend that the entire issue of *44these arms be condemned, and that these facts be made known to the parties who made the contract.

*u*I have the honor to be, very respectfully, your obedient servant,

“ WILLIAM H. HARRIS, ,

“ *Second Lieutenant of*Ordnance.

“T. G. Baylob,

“ *First Lieutenant of*Ordnanee.”

The inspection of the arms in the hands of the.Ei ghty-eighth Pennsylvania, furnished by complainant, was made by Thomas D. Doubleday, colonel Fourth Regiment United States Artillery, who reported that—

“ The arms which were manufactured at Philadelphia, Pennsylvania, are of the most worthless kind, and have appearance of having been manufactured from old condemned muskets. Many of them burst; hammers break off; sights fall off when being discharged. The barrels are very light, not exceeding one-twentieth of an inch in thickness, and only rifled from four to nine inches from the muzzle. The stocks, many of'them, are-old, newly-monnted, and the balance made of green wood, which has shrunk so as to leave the bands and trimmings loose. The bayonets are of so frail texture that they bend like lead, and many of them break off when going through the bayonet exercise. You could hardly conceive of such a worthless lot of arms, totally unfit for service, and dangerous to those using them.

*“*I am, very respectfully, your obedient servant,

“ THOMAS D. DOUBLEDAY,

*“ Colonel Fourth Regiment New Yorlc*Artillery.

“ Captain E. P. Halstead,

*“Acting Assistant AdjiitanPGeheral.”*

The inspection of the Ninety-first Regiment’s arms, furnished by claimant, was made by John Buford, assistant inspector-general, who reported as follows:

“ Washing-ton, D. 0., *April*9,1862.

*u*Major : I have the honor to report that, in obedience to instructions from Brigadier-General Wadsworth, I inspected yesterday the arms in the hands of the Ninety-first Regiment Pennsylvania Volunteers, and found that the regiment has 809 *45guns called Enfield rifles, furnished to the Government by P. S. Justice, of Philadelphia.

*u*I examined about seventy of these guns that had become unserviceable for various causes, each one showing some defect in material or manufacture. Many had burst; many cones had been blown out; many lochs were defective; many barrels were rough inside from imperfect boring, and many had different diameters of bore in the same barrel.

“ These guns have been in the hands of the regiment about four months, and have been fired but little. At practice with blank-cartridges one gun burst. At target practice so many burst that the men became afraid to fire them. At present it is with difficulty that the men are made to charge their arms for guard duty; those who do load them throw away part of the powder.

“ These arms seem to have been gotten up in a hurry from old material, and altered without any reference to service or safety. Most of the guns have the United States old musket-lock, and in many cases only one of the screws for attaching it to the gun is used. Judging from what I saw of the guns, I pronounce them unserviceable and unsafe.

<( I am, very respectfully, your obedient servant,

“ JOHN BUFOBD,

“ *Assistant Inspector-General.*

■“ Major T. Talbot,

*u Assistant Adjutant-General.”*

8. On the 20th of May, 1862, the Chief of the Ordnance Bureau informed the Secretary of War that some of the arms purchased from claimant were not serviceable arms, and that he deemed it his duty to withhold the payment of one of his vouchers, amounting to $19,171.25, until the matter could be investigated. With this letter the Chief of Ordnance submitted to the Secretary all the papers in his hands on the subject, and suggested that the whole matter be referred to the commission constituted by the Secretary of War “ to audit and adjust all contracts, orders, and claims on the War Department in respect to ordnance, arms, and ammunition,” then sitting in Washington.

9. On the same day, and in pursuance to said recommendation, the Secretary referred the voucher of March 19,1862, and *46all the papers and reports transmitted to him by the Chief of Ordnance, to the commission, who took cognizance of the whole case and proceeded to investigate the character and quality of the arms furnished by the claimant, which had been taken out of the hands of the troops and deposited in the United States arsenals, armories, &c. To that end the commission directed further inspections and comparisons with the sample arm, which resulted in reports found in the record, showing the arms in many respects defective, but on an average equal to the sample arm.

10. The claimant was in Washington during the session of the commission, and it is proven that he appeared before it afr different times and was very persistent and energetic in presenting his claim. He offered no evidence, but presented several written arguments before the commission.

11. On the Cth of June, 1862, the commission decided as follows :

*“*The commission consider it proved that Mr. Justice has not fulfilled his obligation to furnish a *‘*serviceable7 arm to the Government, but has been paid at the rate of $20 a gun for arms not suitable in workmanship or material for the public service, and judging from the character of arms purchased at $20, and from the prices paid usually for inferior arms during the period of delivery of these, that a price of $15 is an ample if not excessive equivalent for such arms.77

12. On the 20th day of June, 1862, the claimant appeared' before the commissioners, and said to them that they had erred in stating in their said report *that he had*delivered the whole number of rifled muskets contemplated by said contract. He1 also presented a statement of the actual deliveries of arms, made by him under the orders referred to the commission. He* also protested that, as his arms were accepted after inspection by Government authority, the Government could not rightfully decline to pay for all so accepted.

13. On the 25th of June, 1862, the commissioners made an additional report to the Chief of Ordnance, as follows :

“ June 25,1862.

“ It appears by a report from the Chief of Ordnance, dated June 24, just received by the commission, that two thousand one hundred and seventy-four rifle-muskets, caliber .69, and two thousand four hundred and sixty-nine rifles with sword-*47bayonets, caliber .58, have been received at Frankford Arsenal upon the orders now; before ns; and, of the two thousand four hundred and sixty-nine rifles with sword-bayonets so received, no complaints of inferiority have been made, except of' one kind without bands, the number of which cannot now be accurately obtained.

*u*The commission decide that no deduction be made except on the first-named class of arms, and direct that the payments heretofore made to Mr. Justice, for arms delivered at the Frank-ford Arsenal, be considered as *1*on accountand that, in a closing settlement of his accounts, $15 per gun only be allowed for two thousand one hundred and seventy-four rifle-muskets, and $20 per gun for two thousand four hundred and sixty-nine rifles with sword-bayonets, furnished under the above orders, as per statement signed by Mr. Justice, and hereto attached.”

On June 30, 1862, the Chief of Ordnance transmitted this additional decision to the Second Auditor, and instructed him to settle the said account of claimant for $19,171.25 on the basis of that decision, and on the 6th of December, 1862, the accounting officer of the Treasury stated the account between the claimant and the United States.

On the 8th of December, 1862, the claimant received from the Treasurer of the United States certificates of indebtedness, amounting to $6,000, and a Treasury draft for $2,301.25, amounting in all to $8,301.25, the receipt of which he acknowledged in letter to the Treasurer of the United States, as follows :

“ 1862.

“ Sib, ■: Have received your letter of draft, together with the certificates of indebtedness, payable to blank.

“ Yours, &c.,

“PHILIP S. JUSTICE.

*“*F. E. Spinnee,

*“ Treasurer of the United*States.”

*The Attorney-General*and *Mr. Assistcmt Attorney-General McMichael*for the United States, appellants:

The authority of the Ordnance Department was to procure muskets described by Lieutenant Treadwell as “ a good, serviceable arm, caliber .69,” &c., and Lieutenant Treadwell stipu*48lated that they should be “ equal in all respects to the sample deposited with ” him. These conditions of the contract were not complied with. The inspection of the arms, as they were delivered at the Frankford Arsenal, was left by Lieutenant Treadwell to subordinates, and their defective character was not then reported to the Ordnance Department.

In caliber and quality the arms were not according to contract. They were not serviceable, nor did they equal the sample furnished by the contractor; the Court of Claims having found, as a fact, that “ these arms, furnished by claimant, were not, in all respects, similar to the sample arm,” which, although qualified by the subsequent language of the court, nevertheless goes to show a failure to comply with the condition of Lieutenant Treadwell’s letter of August 17, 18G1, which provides that the muskets shall be “ equal in all respects to the sample deposited with” him.

These arms were furnished directly by the claimant. The presumption is that he knew their defective character, and he cannot take advantage of a nominal inspection at the arsenal by subordinates. The obligation of his contract with the United States was, not that his arms should pass an inspection, but that they should be of a certain caliber, quality, and standard, and this obligation he failed to fulfill.

He assented to the retention of the defective arms by the United States at a rate which, although less than the contract-price, was fully equal to their value. He was hot entitled to more. — 1 Parsons on Contracts, 591, 592; *Germain*v. *Burton,*(3 Starkie, 581;) *Gary*v. *Gruman,*(4 Hill, N. Y., 625;) *Dows*v. *Durfee,*(10 Barbour, 211;) *Hitchcock*v. *Hunt,*(28 Conn., 343.)

Mr. Justice accepted the sum allowed, after having attended the meetings of the commission, and with full knowledge that it was intended as a final payment of his account, and by this action he was concluded from making any further claim on the United *States.*— The *United States*v. *Adams,*(7 Wall., 463;) *The United States*v. *Child,*(12 id., 232;) *The United States*v. *Clyde,*(13 id., 35.)

This final settlement was made in December, 1862. The petition in this case was sworn to on the 16th of October, 1867, and there is no evidence of any protest or complaint on the part of the claimant until the filing of this petition. He acquiesced in the final settlement for nearly five years.

*49*Mr. J. Riibley Ashton*for the claimant, appellee.

Only two questions can be made in this case :

I. Whether the claimant is barred from maintaining this action by reason of having received a part of the amount due upon the voucher of March 19 ?

II. Whether, upon the facts found by the Court of Claims, the Government has any legal defense to this suit for the contract-price of the arms *%*

I. It is obvious that the facts of this case do not bring it within the principles of the decisions in the *Adams., Child,*and *Clyde Cases.*The claimant here had an executory contract, the validity and regularity of which nobody ever doubted, to furnish a number of arms of a certain description at a fixed price. It was made upon the exhibition of a sample, which proved satisfactory to the agents and experts of the Government. The arms were to be inspected by those agents and experts according to that sample$ and they were to be rejected if found unsatisfactory, and accepted if found satisfactory. Arms of the kind contracted for were delivered, and the requisite number, upon full inspection by the experts of the United States, was accepted and appropriated to the contract. Nobody ever suggested that any fraud or collusion occurred in the transaction or any part of it. The arms were not only accepted, but the most of them actually distributed to and used by troops in the field. Begular vouchers, officially executed by the inspecting officer, were issued to the contractor. All these vouchers, except one, were duly paid, and the transactions closed. When the claimant exposes the error of the first report, he protests against any repudiation of the contract on the part of the Government. Afterward he receives, in due course of business, from the Treasury Department, a draft for $2,301 25 and certificates of indebtedness for $6,000, and, in a letter to the. United States Treasurer, he *aolmowledges the receipt of this draft and these certificates, amounting in all to*$8,301 25. He gives no other receipt or acquittance. He is not required to take the Treasury draft and the certificates of indebtedness, or the amount payable on them, in full satisfaction of the whole claim, and he never acknowledged that amount to be in full satisfaction of the whole claim. No such condition is imposed or fulfilled. Plainly, then, the doctrine of the *Fremont Contract Cases*and the *Clyde Case*does not apply.

*50In *United States*v. *Child,*(12 Wall., 245,) Mr. Justice Miller rests the decision upon the effect of the *receipt in full,*required by the Government before payment, and executed by the claimant contemporaneously with the payment of the amount allowed. Mr. Justice Bradley, in *Clyde’s Case,*(13 id., 37,) rests the decision there also upon the receipt in full. In the case at bar, the claimant receipted for what he got, and for no *more;*and he never, in any manner, agreed to take that in full discharge of his demand. The demand here was for an *ascertained*and *liquidated,*and an *undisputed*amount. It was liquidated by the legal voucher of the proper officer, in the full and absolute sense of the rule of the common law, that the payment of a smaller sum *cannot*be an accord and satisfaction of a larger debt which is fixed and liquidated. By that rule, such a debt as this cannot be discharged by the payment of a less sum, even though it be acknowledged to be received in full satisfaction. *(Cumber*v. *Wane,*1 Smith’s L. C., part 1, p. 556.) *A fortiori,*it cannot be discharged by the receipt of a less sum, which is *not*agreed to be taken in full satisfaction. Neither in the *Adams,*nor the *Child,*nor the *Clyde Case*was the claim liquidated in any absolute sense. In the *Child Case,*Mr. Justice Miller speaks of the claim as t£an unliquidated and controverted demand.” (12 Wall., 244.) And in the *Clyde Case*the amount was not liquidated until the account was stated by the quartermaster at the reduced rate of the Quartermaster-General. (13 Wall., 36.)

But this was also an *undisputed*claim — undisputed, we mean, in a legal sense. There was and could be no difference between the parties in regard to the fact of the contract, or as to its validity and binding force, or as to the delivery, due inspection, and receipt of the property, or as to the liquidation by the ordnance officer, or as to the good faith of the claimant. The theory of the Government would appear to have been, that a better or different contract ought to have been made than was made, or that the claimant ought to have furnished better arms than the inspectors were willing and bound to accept, or than the agreement provided.

But the character and amount of the deduction preclude the idea that the claimant meant to take the reduced amount in satisfaction of this debt. For, by the manner of stating this account in the Auditor’s Office, the Government proposed to *51enforce *restitution*of over $8,000, already in tlie pocket of the claimant, for arms not embraced at all in this Voucher. A reduction was made of the price, not only of the four hundred and seventy-two muskets in this voucher, but of over eight hundred other muskets long since paid for ; and the supposed overpayment on account of these latter was deducted from the amount certified to be payable in the last voucher.

II. The second question — whether, independently of the theory of satisfaction, the United States, upon the facts contained in the record, have any legal defense to this claim — requires very little argument on the part of the appellee. Tlierecanbeno dispute in regard to the fact and terms of the contract, or that it was made by competent authority of the Ordnance Department. The Government has a right to reject and refuse to pay for all arms disapproved in good faith by its inspectors, as not conformable to the sample. But it is bound to pay. for all actually approved and accepted in good faith by these agents. As the contractor cannot complain of the decision of the inspectors rejecting his arms for want of conformity to the sample, so the Government cannot repudiate the action of these inspectors in receiving the arms, as, in their judgment, equal to the sample.

*

 No opinion was delivered by the Court of Claims in this case.

Mr. Justice Davis

delivered the opinion of the court:

It is impossible to escape the conclusion, after reading the evidence which the Court of Claims incorporates with its finding of facts in this case, that the arms obtained by the Government from Justice were unserviceable and even unsafe for the troops to handle, whether they were equal to the sample arm furnished by him or not. It is true they had been accepted by Lieutenant Treadwell, with whom the contract of purchase was made, after inspection by subordinates appointed by him, but when difficulty arose in relation to them he said, in justification of his conduct, and to show his interpretation of the contract, that he had instructed these inspecting officers to reject all the arms that, in their opinion, were not good and in all respects fit for use in the field. That the duty with which these officers was charged was, to say the least, negligently performed is evident from the result of the subsequent inspection which was ordered.

This inspection was in response to serious complaints from *52three regiments of Pennsylvania volunteers which had been armed with the muskets in controversy.

The arms of each regiment were inspected by a separate commissioned officer of experience, and all united in condemning them as worthless, and, indeed, dangerous to those using them.

In this state of case, the Chief of the Ordnance Bureau informed the Secretary of War that he deemed it his duty to withhold payment of one of the vouchers given for these arms until the matter could be further investigated, and recommended reference of the entire subject to the commission then sitting in Washington, which had been constituted by the proper authority *u*to audit and adjust all contracts, orders, and claims on the War Department in respect to ordnance, arms, and ammunition.” In accordance with this recommendation the ease was referred to this commission, which, after full investigation and a patient hearing given to Mr. Justice, reported'that he had not fulfilled his obligation to furnish u a serviceable arm”* to the Government, and fixed a basis on which the account should be settled.

This basis of settlement was adopted, and in accordance wTith it the Secretary of the Treasury, on the Sth of December, 1862, pursuant to a requisition of the War Department, drew his warrant on the Treasurer of the United States in favor of Justice for the amount found due by the accounting officers, which was transmitted to him, and receipt of it acknowledged .by letter. After waiting until the five years’ limitation to actions of this kind had nearly expired, he brings this suit to recover the balance of the claim, according to the original contract price, and the question is, can he maintain it? In the nature of things, during such a war as we have just passed through, contracts would in many instances be made by some of the numerous .subordinates intrusted with that duty, in disregard of the rights of the Government; or if properly made, would be so unfaithfully executed that the public service would suffer unless their further execution were arrested. Although every just government is desirous of making full compensation *53to its creditors in all cases of fair dealing, it cannot afford to-recognize tins rule where an imposition has been practiced upon it. Of necessity it acts through agents, and cannot,, therefore, assure its own protection as natural persons in dealing with each bther. What, then, was the proper course for the Government to pursue in relation to these disputed claims *f*To pay them, in the existing condition of the country, would set a bad example and lead to the most ruinous consequences and to withhold payment altogether, until Congress or the Court of Claims should act, would be, in case the claim should prove-to be meritorious, a hardship. Common fairness required that some mode should be adopted for the speedy adjustment of these differences between the creditor and the Government, and what better mode for the accomplishment of this object than the appointment of a commission of intelligent and disinterested persons to hear the respective parties and to settle the allowance to be made 1 We know, by the history of the times, that several commissions for this purpose were appointed during the war, and the record discloses the fact that when this controversy arose there was one sitting in .this city, constituted by the Secretary of War under the authority of the President, to audit and adjust claims of like character. It is fair to presume, in the absence of anything in the record to the contrary, that the creation of this commission was a necessity produced by the number and magnitude of the claims presented to the Ordnance Bureau which the head of it deemed unjust, and was, therefore, unwilling to pay. This commission, like all others with similar authority, possessed no judicial power, nor did it attempt to "exercise any. It could not compel a claimant to appear before it and submit to its action, nor would its decision, in case there were no adversary party, have any conclusive effect. If, on the contrary, the party whose claim was disputed went before it, participated in its proceedings, and took the sum found to be due him without protest, he cannot afterward be heard to say that he did not accept this in full satisfaction of his demand. This voluntary submission and reception of the money is an acceptance on the part of the claimant of the mode tendered him by the Government for the settlement of his disputed claim, and precludes him from any further litigation.

It is always in the power of parties to compromise their differences. Oue way of doing this is by arbitrators, mutually *54chosen, but from, such submission neither jiarty is at liberty to withdraw after the award is made. The condition of the Government creditor is better than this, for if dissatisfied with the allowance made him by the commission, he can refuse to receive it, or can accompany his receipt of it, if he chooses to take it, with a proper protest.

This protest is necessary to inform the Government that the compromise is rejected, and that this rejection leaves the claimant free to litigate the matter in dispute before the Court of Claims.

If with this knowledge and under these circumstances the money is paid, there can be no just cause of complaint on either side, and the status of the parties is not affected by anything which transpired before the commission. ■

These views dispose of this case. If it be conceded that the guns obtained from Justice were equal to the sample furnished, still it is manifest they were not a serviceable arm, and were, besides, unsafe, and that the Government withheld the payment of the voucher because the contract, in the opinion of the Ordnance Bureau, was unfaithfully executed. ■■

The contract, with the accompanying papers, were referred to the ordnance commission. Justice appeared before it to contest the position of the Government, and, although he offered no evidence, argued his case in writing. And, as if to leave no doubt of his intention to abide the result, he succeeded, two weeks after the commission had reported on the matter to the Chief of Ordnance, in getting an error against him corrected. And when this was done, and the account stated in conformity with this correction, he receives the amount allowed him without an intimation of dissatisfaction. It is difficult to suppose that at this time he had any other purpose than to acquiesce in the decision which was made. If his purpose were different, why the long delay in instituting suit ? It is hard to believe that the course subsequently .taken was not the result of an after-thought.

The recent cases in this court of *The United States*v. *Adams*and *The United States*v. *Child, Pratt & Fox,*(7 Wall., R., p. 463, 12 id., p. 232; 7 C. Cls., R., pp. 158-209,) are like this in principle, although they contain some elements not applicable here.

The judgment of the Court of Claims is reversed and this cause is remanded to that court, with instructions to dismiss the petition.

*

 This term “ a serviceable, arm” occurs in the report of the commission, but is not found in the offer of the claimant, nor in the acceptance of that offer by the ordnance officer. The only obligation there enumerated is to furnish arms equal to the sample.