Page:Federal Reporter, 1st Series, Volume 9.djvu/820

 UNITED STATES V. EICHARDSON. 806 �was by him thereupon dnly ratified and confirmed; that the defend- ants, as executors of said Way, owe said sum to the plaintiffs. The second and third counts allege a promise to pay $55,000, in consider- ation of an agreement that the plaintiffs would forbear to sue Way, and that they have so forborne. The answer sets up four def ences : �(1) A deniai of the coiitract. (2) No performance, or offer to perform, by the United States, during Way's life. (3) ihat in violation of the contract, if any was made, the plaintifEs have sued the defendants fora part of the sums alleged to be due from "Way. (4) ihat after Way's death a compromise was duly made by the plaintiffs with these defendants, as executors, which took the place of the compromise declared on, �The cause was tried by the court. I find the following facts : �An information wasflled in the district court here, October 25, 1871, against 1,291 baies of tobacco, imported by the brig Star, for a fraud said to havebeen attempted by Way in bribing a weigher to make a false return. Way claimed the goods, and received theiu upon giving bond, with sureties, for $100,000, which was their agreed value. April 1, 1872, a default was entered, and Way was ordered to pay into court, within 20 days, the $100,000 and costs. Sev- eral payments were made ; the last instalment of the damages May 18, 1872, and the costs May 27, 1872. At this time a personal action was pending by the United States against Way for penalties said to have been incurred in some other importations of tobacco, to the amount of $300,000. �In a letter dated May 8, 1872, Way ofiered the secretary of the treasury to pay $100,000 in full compromise and settlement of the judgment, and of all fines, penalties, and forfeitures incurred by reason of certain importations of tobacco, enuinerated in his letter ; also, all duties due on said importations. �ihe offer having been referred back to Mr. Mason, district attorney, he wrote to the soliciter, May 18th, explaining that the United States had already recovered $100,000 for an attempted fraud, by which they had lost notliing ; that the duties due the government were small ; but yet that he would not rec- ommend an acceptance of the ofEer of May 8th; but he did recommend the secretary to accept an offer of $55,000, which he inolosed, in these words : "May 18, 1872. I hereby propose to pay $55,000 on the suit against me in the district court in settlement of all claims of the government against me." �Mason wrote, May 24, 1872, making further explanation of the case, and saying that the gross duties due were about $25,000, but, after allowauce for tare, etc., would be about half that sum ; and again advising to accept the $55,000. He said, besides, that the pi'oposal to release " all claims" was in- tended by him to include only the tobacco importations; that he knew of no others, nor could Way have antieipated a settlement of unknown claims. May 27th Mason sent a telegram to the soliciter : " If you accept Way's offer, please make condition immediate payment." May 27th Mr. Banfleld, the soliciter, wrote the secretary, referring to both oflers, and advising him to accept the second, " with the proviso that the matter be submitted to the proper ��� �