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 three 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 to 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 chosen, 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.