
    MRS. MELLEN’S CASE.
    Ellen S. Mellen, administratrix v. The United States.
    
      On the Proofs.
    
    
      The Secretary of the Treasury employs an attorney to eolleet a debt due to the government; the agreement provides that the Secretary may terminate it at any time. The attorney’s compensation is to be a percentage. He negotiates a settlement. A subsequent Secretary terminates the agreement. The government then.colleets the debt under the agreement negotiated bythe attorney. Subsequently a distinct account of his for other sendees is compromised and paid. An indorsement appears on this account by the Secretary .that the payment is to be in satisfaction of all claims of the attorney against'the government. It does not appear that this indorsement was ever made Jcnown to him.
    
    
      I. Where tlie Government employs an attorney at an agreed compensation to collect a debt, reserving tlie right to terminate tlie agreement at any time, and tlie attorney negotiates a settlement of tlie debt, and tlie Government subsequently accepts and receives tlie fruit of this arrangement, doing nothing- in the matter oxeeiit receiving- the money, the attorney will he deemed to have performed his part of the agreement, though it was terminated before the money was paid over.
    II. An official memorandum of the Secretary of the Treasury, indorsed on an account as a direction to his subordinates, is not a matter of record of which the public or persons dealing with the department must take notice.
    III. Accord and satisfaction or compromise is a matter of agreement and is to be liberally construed and carefully upheld, but the compromise of an account containing specific items cannot be extended to a distinct debt which has not entered into the creditor’s voluntary agreement.
    
      The Reporters’ statement of tbe ease:
    Tbe court found tbe following facts :
    I. On tbe lltb August, 18C8, tbe claimant’s intestate was an attorney at law, wlio bad been and then was retained and employed by tbe Secretary of tbe Treasury to collect various debts due to tbe United States otlier than tbe indebtedness of one John S. Fillmore, hereinafter, referred to. At tbe same time tbe estate of John S. Fillmore, deceased (late an assistant paymaster in tbe Army), was largely indebted to tbe defendants. On the said lltb August, 18C8, tbe Secretary of tbe Treasury directed tbe following letter to be addressed and sent to tbe claimant’s intestate, Mr. Mellen:
    “Treasury Department, Solicitor’s Oeeioe,
    
      August 11,18G8.
    “ Sir : By direction of tbe Secretary of tbe Treasury, I transmit you herewith certain papers, of which a memorandum is annexed, relating to a claim in favor of tbe United States against tbe estate of John S. Fillmore, deceased; late additional paymaster, &c., and tbe sureties on bis official bond, with tbe request that you go immediately to Denver, Colorado, and examine into tbe case, and take such measures as you deem necessary and proper for securing tbe interests of tbe government and collecting tbe claim.
    “ It is believed that there is danger of loss to tlie government in tbe case which good management and vigilance alone will prevent. Ton will consider tlie. .case in your charge and give it the best possible attention.
    “ Your compensation for sendees rendered in the matter to be adjusted hereafter by the Secretary'and myself.
    “ Yery respectfully,
    “EDWARD JORDAN,
    
      “Solicitor of the Treasury.
    
    “ Wa. P. Mellex, Esq., Special Goxonsel, &e.
    
    
      “Memorandum of papers transmitted.
    
    “Nos. 1, 2, & 3, copies of the three bonds of said Fillmore, dated, respectively, April 26,1863, November 10,1862, and February 23, 1863.
    “ No. 4. Package of 37 pages, containing transcripts of the aceoimts-current of said Fillmore, &c.
    “ No. 5. Statement of 1 differences.’
    “No. 6. List of the property belonging to the 1 Fillmore estate,’ of Denver, C. T.
    “No. 7. List of lots belonging to the “Fillmore estate’ deeded away, &e.
    “ No. 8. Letter of George P. Ihrie to Paymaster-General, U. S. A., dated May 20,1868. '
    “ No. 9. Plat of Denver City, O. T.'
    “ No. 10. Letter of the Solicitor of the Treasury, dated August 11,1868, directing suit against the legal representatives of said Fillmore.”
    II. Pursuant to the direction of the Solicitor, of the Treasury, set forth in the first finding, Mr. Mellen immediately proceeded to Denver, for the purposes specified, and shortly thereafter, viz, on the 1st September, 1868, made a report of his examination to the Solicitor of the Treasury,'and thereupon a contract was entered into by him and the Secretary of the Treasury, which is contained and set forth in .the following correspondence, to wit:
    On the 1st September, 1868, Mr. Mellen wrote to the Solicitor of the Treasury as follows:
    “ In your letter of the lltli ultimo, requesting me to go to Denver and attend to this case, you said nothing about terms. If it be the desire of the department that the case shall be placed in my hands upon the same terms as other cases covered by my contract, I shall be satisfied- with that. Brit as the expense of getting to and from Denver, tbe expense of special counsel there (tbe ordinary charge for collections there is 10 per cent.), and all other expenses connected with the case, must necessarily be extraordinary, and as the amount involved is large, I am willing to make this, a case of special bargain, and therefore propose to undertake the collection, upon the following terms: I will pay all expenses attending the collection, including those already incurred, for 10 per cent, on the amount collected, if I do not collect more than half the amount due; or 12\ per cent, if I collect three-fourths; or 15 per cent, if I collect the whole amount due.”
    The Solicitor of the Treasury duly transmitted these propositions of Mr. Mellen to the Secretary of the Treasury, who, on the 30th September, 1808, replied thereto by the following letter, which was duly transmitted to Mr. Mellen by the Solicitor of the Treasury:
    “ Treasury Department, September 30th, 1888.
    “Hon. Edward Jordan,
    “ Solicitor of the Treasury, Treasury Department:
    
    
      u Sir : I have the honor to acknowledge receipt of your letter of the 28th inst., transmitting copy of a letter from Mr. Special Attorney Mellen, respecting the condition of the claim of the U. S. against the estate of John S. Fillmore, deceased, late paymaster, &c., at Denver, Colorado Territory, by which it appears that said claim, as ascertained by the accounting officers, will amount, after deducting a balance of $2,000 remaining in bank at Denver subject to the order of the Paymaster-G-eneral, to $77,304.98.
    “ It further appears that the claim, as admitted by the statement of his account as made by the deceased, will, after crediting him with such balance, amount to $50,971.82; that letters of administration were granted on the estate in 1885, and that the assets appear to have been more than sufficient to pay the claim; that the widow of Fillmore married again, and that her present husband, Jeremiah Kershow, and herself have been appointed to administer the estate in place of the former administrators, but have not since filed an account; that a large portion of the assets consisted of real estate in and near Denver, the title to which will necessarily be disputed in behalf of the U. S.; that only a small part of the defalcation is covered by official bond, but that the admiffistratprs are liable for maladministration, and that the whole effects of the estate, real and personal, are now in the hands or subject to the control of the widow of the deceased and her piesent'husband.
    “ It farther appears that Mr. Mellen is of opinion that with proper management the estate can still be made to pay the whole debt due the U. S., but that immediate and energetic steps must be taken to secure that result, and that the employment of reliable special counsel at Denver will, be indispensable; authority for which comse should be given Mr. Mellen at once, with full powers to meet any contingency, the sphere of action being so remote that communication with the department cannot readily be had.
    “ It further appears that Mr. Mellen-is-willing to take charge of the claim and prosecute it to a final issue either upon the terms of his general contract with the government, dated July 17, 1865, or under a special agreement, upon the following terms, viz: That he will pay all expenses, ordinary and extraordinary, attending the prosecution and collection of said claim, including those already incurred, and charge for his compensation, if he collects not more than half, the debt, ten per cent, on the amount collected; if more than half and not over three-fourths, twelve and half per cent.; and if the whole, fifteen per cent.
    “The last proposition you are inclined to think the most favorable one for the government.
    
      “ Under his original agreement he would be entitled to ‘five per cent, of all monies realized for the U. S.’ out of such claim, and to ‘ be reimbursed his actual expenses in traveling in the discharge of his duties,’ and ‘ all' expenses incurred under the agreement,’ including ‘ fees and compensation to counsel, attorneys, agents, clerks, and others enrployed to assist him,’ ‘ with the authority and approval of the Secretary and Solicitor of the Treasury.’
    “ In view of the expense of getting to and from Denver and of employing special counsel there, the. ordinary charge for collections being, by Mr. Mellen’s statement, ten per cent., and as other extraordinary expenses will probably be necessary, I am disposed to concur in your recommendation of a special contract for the prosecution of the claim in question, and, as immediate action is required, and Mr. Mellen appears to be the person best qualified to take the principal charge thereof, you will instruct him accordingly.
    “It is understood that the employment of M’r Mellon is subject to the same restrictions, with respect to its termination, as are contained in the general contract before referred to.
    “ I am, very respectfully,
    “II. McOULLOCH,
    “ Secretary of the Treasury.”
    The “ original agreement,” referred to by the Secretary of the Treasury in this letter, was an agreement between the Secretary and Mr. Mellen, bearing date 17th Juljq 18G5, relating to the collection and prosecution of various debts due to the United States^ and the “restrictions with respect to its termination, referred to by the Secretary, were in the following words:
    “ And it is further mutually agreed that the Secretary of the Treasury may terminate this contract by notice in writing to said Mellen to that effect ivhenever he shall deem its termination required by the public interests ,• in which event, or in case of the termination of this contract by the death of said Mellen, the said Secretary of the Treasury shall award and pay said Mellen or his representatives, in addition to the sums which shall have been received by him under this contract, such additional compensation for services performed, upon which no commissions or other compensation shall have been paid, as shall be just and equitable.”
    III. Under and in pursuance of the contract set forth in the second finding, Mr. Mellen proceeded to Denver and took measures toward the prosecution of the estate of John S. Fillmore, deceased, which resulted in his procuring and inducing the ad-ministratrix of the estate, and her second husband, they being the parties in possession of the estate, to enter into the following agreement:
    “ Memorandum of an agreement made this sixteenth day of December, eighteen hundred and sixty-eight, between Elizabeth M. Kershow, administratrix of the estate of John S. Fillmore, deceased, and Jere. Kershow, her husband, and Edward Jordan, Solicitor of the Treasiuy, viz :
    “ Said Fillmore, who was a paymaster in the Army of the United States, died at Denver City, Colorado, December 25, 1864. I-Iis accounts have been settled by the accounting officers of tbe government, and lie lias been found indebted in tlie sum of seventy-nine thousand three hundred and four and T^- dollars, besides interest from December 20,• 1805. Administrators were appointed at Denver, who received a large amount of money belonging to the estate, and disbursed a large part of it wrongfully. There is now a large amount of real property, much of it productive, situated in Denver, belonging to the estate.
    “ For the purpose of securing tlie payment of the debt due to United States, with interest thereon, and preserving as much as possible of the property belonging to the estate for the legal representatives and heirs-at-law of said Fillmore, it has been agreed between the parties aforesaid as follows:
    “ The United States shall file a bill in chancery in the Federal court at Denver, which has been prepared for that purpose, setting forth the facts in the case, and asking for the appointment of a receiver to take possession of the property and assets of tlie estate. Upon filing the bill, Mrs. Kershow, for herself, and as administratrix, shall answer, admitting the amount due as hereinafter stated, and consenting to the appointment of a receiver. A guardian ad litem shall be appointed for the children of Mr. Fillmore who shall also answer, admit, and consent as aforesaid. . ,
    “The amomit so tobe admitted due shall be seventy-nine thousand three hundred four and ninety-eight one-hundredths ($79,301.98) dollars, with interest thereon from December 20th, 1805, subject to all credits not heretofore made which the accounting officers of the government shall hereafter allow upon the accounts of said Fillmore so far as said credits shall be for charges in the accounts of said Fillmore made before his death. Interest thereon shall be. allowed from December 20th, 1S05; and, so far as they shall be. for sums since paid, interest shall be allowed from the date of payment. It is understood and agreed that the receiver shall collect the rents of the property belonging to the estate, and shall sell-so much of said property, and only so much, as will enable him to pay the debt, as follows:
    “ One thousand dollars ($1,000) on the first day of July next, and the same sum on the first day of' every month thereafter until the whole debt and interest shall.be duly paid.
    “ On the first day of July, eighteen hundred and seventy, one-third, of the amount which shall then remain due, with interest. On the first day of July, eighteen hundred and seventy-one, one-half of the amount which shall then remain due, with interest, and on the first day of January, eighteen hundred and seventy-two, the balance which shall then remain due, with interest. The payments to be made at such place and in such manner as shall be hereafter directed by the Solicitor of the Treasury.
    « It is further understood and agreed that the United States shall consent that the receiver may, out of the proceeds from rents or sales of real estate, allow Mrs. Kershow one thousand ($1,000) dollars per quarter for the support of the family of Mrs. Kershow, together with the use of the house she now occupies free of rent, except taxes, insurance, and repairs. It is also understood and agreed that no sales of real estate shall be made by the receiver, except so far as may be necessary for the purpose of making up any deficiency in the amount received by him from rents to make the payments as above stipulated, together with payment of taxes, insurance, repairs, or other necessary expenses connected with the execution of his duties as receiver; provided, however, that if the legal representatives of said estate shall consider it for the interest of all concerned, at any time or times, to sell any part or parts of the property belonging to said estate, then the same may be sold, provided that the proceeds of all said sales shall be exclusively applied to the payment of the debt due to the United States until the same shall be fully paid and satisfied.
    «It is further understood and agreed that in case the legal representatives shall, at any time, be desirous and able to borrow money by mortgaging the property belonging to the estate, or any part thereof, the United States shall consent thereto; provided, that the money so borrowed, or so much thereof as shall be necessary for that purpose, shall be exclusively applied to the payment of any balance which shall remain due to the United States at the time of making such loan.
    «It is further understood and agreed that the United States shall prosecute the pro'coedings in chancery under the bill to be filed as above stated in such manner as will tend to and for the purpose of recovering all monies which have been wrongfully appropriated by the former administrators of said estate, and, also, so as to remove any incumbrances or clouds upon the title to any part of the property belonging to said Filmore at the time of bis death, and all moneys collected throng’ such proceedings shall, after payment of the amount due to the United States] be appropriated under decree of the court in such manner as shall most conduce to the benefit of said estate, so far as the same can be influenced by the - attorney of the United States.
    « It is further understood and agreed that, in case of default in making any payment due to the United States at the tune or times and in the manner above specified, the whole amount remaining unpaid shall become due and payable, and the receiver shall at once be required to sell the whole estate at public auction within sixty days thereafter for cash.
    « It is further understood and agreed that, after the debt due to the United States shall be fully paid and satisfied; a full relinquishment shall be made by the United States of all claims upon the real estate or other property claimed as the property, of said Filmore on account of the use made by him of moneys' belonging to the United States or otherwise.
    “ The attorney of the United States for the district of Colorado is to be informed of the above arrangement, and directed to carry it out under such instructions as shall be given to him from time to time by the Solicitor of the Treasury.
    «ELIZABETH 31. KERSHOW,
    
      “Administratrix of Estate of John S. Filmore.
    
    “ JERE KERSHOW,
    « II. A. RISLEY,
    
      uActing- Solicitor of the Treasury.”
    Subsequently the bill in chancery and the answers referred to in the foregoing agreement were filed, and a receiver was appointed as therein prescribed, and there.was paid to the United States at various times, between the 1st July, 1869, and the 2d March, 1876, by or on behalf of the estate of John S. Fillmore, deceased, the whole of the indebtedness due from him to the defendants j which indebtedness had been reduced by certain credits from $56,971.82 (the amount stated by the Secretary of the Treasury on the 30th September," 1868) to $52,899.79. Of this amount, $32,989.31 was paid by the legal representatives of the said Fillmore’s estate by a loan raised on the estate, and the balance by the receiver.
    TV. On the 29th June, 1869, the Secretary of the Treasury addressed to Mr. 3Iellen a written communication, containing the following notice:
    
      
      u You are also notified that your authority to further attend to the collection'of the claim against John S. Fillmore, deceased, et al., given in the letter of the Secretary, dated September 30, 1868, is hereby terminated.”
    Y. TheYSecretary of the Treasury has not awarded or paid to Mr. Mellen, or his representatives, any compensation for the services rendered by him before set forth; but the United States district attorney in Colorado assisted Mr. Mellen in preparing the bill in chancery before referred to, and subsequently conducted certain legal proceedings referred to in said agreement of 16th December, 1868, which should have been conducted by Mr. Mellen if his employment had not been terminated by the Secretary'of the Treasury. Up to the time of the Secretary’s notice of 29th June, 1869, Mr. Mellen exercised due diligence in performing^the obligations of his contract with the defendants set forth in the second finding, and advanced and paid out for his expenses the sum of $700, and negotiated and arranged the settlement embodied in the agreement of 16th December, 1868, though the United States district attorney in Denver cooperated with him hi draughting and preparing the bill in chancery therein referred to, and filed said bill on behalf of the United States in January, 1869. A fair and reasonable allowance to the claimant for the services performed by Mr. Mellen toward collecting and securing the amount due to the United States from the estate of John S. Fillmore, deceased (including the expenses and outlays incurred by him), upon the basis of the compensation described by his contract, to wit, 15 per cent, of the amount collected, less the proportionate value of the services performed for the defendants by their own officers, is the sum of $4,500. Apart from the terms of said agreement, the sum of $3,800, and the reimbursement of his expenses, to wit, $4,500 in all, would have been reasonable compensation for Mr. Mellen’s services.
    YI. In 1870 the defendants, being indebted to Mr. Mellen on the contract between them of 17th July, 1865, for various legal services other than and having no relation to the claim against the estate of John S. Fillmore, deceased, Mr. Mellen rendered to the Secretary of the Treasury an account therefor, showing a balance due to him of $7,756.57. After certain negotiations with the Secretary personally relative to the payment thereof, bo addressed to Mm an offer of compromise, contained in the following letter:
    “Law Oeeices op Joed an, Hinsdale & Mellen,
    115 Broachvay, New York, May 23, 1870.
    “lion. Geo. S. Boutwell,
    
      Secretary of the Treasury, Washington:
    
    Deae Sie : Referring to my letter to yon of the 20th inst., containing an abstract of my account for $7,756.57 as a balance due to me for services under my contract with the department dated June 17,1865, and asking you to pay at once'such amount in compromise and settlement thereof as you should think proper, and referring also to your verbal offer on Saturday evening to pay me $6,000 as such compromise and settlement, I have now the honor to say that I have considered the matter, and have concluded to accept $6,000 in payment of the balance claimed by me as due under the said contract. You will therefore please cause the same to be sent to me in check on tMs city as soon as you can conveniently, and this letter may thereupon be taken as a full release and discharge of all claims under the said account or under the said contract.
    “I am, very respectfully, your obt. servt.,
    “WM. P. MELLEN.”'
    On the 28th May, 1870, the Secretary of the Treasury made the following indorsement on the account just referred to:
    “Treasury Depabtscent, May 28, 1870.
    “Approved at $6,000, on the terms and conditions specified in the within memorandum, and referred to the First Auditor for examination and settlement.
    “Payment from apppropriations for collecting claims due the United States.
    “ J. II. S. “'GEO. S. BOUTWELL,
    “ Secretary of the Treasury.”
    The “memorandum” named in this indorsement was in the following words:
    “Treasury Department, May 28,1870.
    “Memorandum. — After due consideration of the claim of Mr. William P. Mellen, hereto annexed, for balance of commissions under bis contract with tbis department, dated Jimel7tb, 1865, amounting to $7,756.57, and upon tbe offer contained in Ms letter dated tbe 23rd inst., also annexed, tbe sum of ($6,000) six thousand dollars is hereby allowed in full of all claims and demands upon tbe government under tbe aforesaid contract or any other contract with said Mellen for tbe collection of claims heretofore existing in favor of tbe United States, and said letter is hereby accepted as a full release and discharge by said Mellen of all indebtedness whatsoever from the United States to him.
    “G-EO. S. BOUTWELL,
    “ Secretary of the Treasury.”
    
    But no notice of this indorsement or memorandum was given to Mr. Mellen, nor is it shown that he had knowledge of them.
    On the 4th June, 1870, the Treasury Department in Washington transmitted to Mr. Mellen, in New York, drafts for the $6,000 before mentioned, less the United States tax therefrom deducted, in the following from:
    “Draft No. 3535.] [W. P. G. W. O. M. W. L.
    “ On Treasury warrant No. 686 pt.
    “Treasury or the Unite» States, Treasury proper:
    “Pay to William P. Mellen or order four thousand two hundred & seventy t%3ó dollars.
    “Washington, June 4th, 1870.
    “L. R. TUTTLE,
    
      “Ass’t Treasurer United States.
    
    “Ass’t Treasurer U. S.
    “4,270-^ New York.
    “Registered June 4th, 1870.
    “John Allison,
    “ Register of the Treasury.”
    These drafts have been duly paid by the defendants.
    
      Mr. T. JD. Lincoln for the claimant:
    Under the agreement, Mr. Mellen was entitled to fair compensation for his sendees; and if there had been no such agreement the same result would have followed, inasmuch as the service was performed by him at the request of the officers of the United States having charge of its moneys and upon an agreement for compensation, and inasmuch, as the Government has received the money and paid it into the Treasury by and through such service. (Danolds v. The United States, 5 0. Ols. R., 80; Heath-field v. The United States, 8 0. Cls. R., 215, 216.)
    
      Mr. Assistant Attorney-General Simons (with -whom was Mr. John S. Blair), for the defendants.
   Nott, J.,

delivered the opinion of the court:

The court regards the cause of action on which the suit is brought as a very meritorious one, but has nevertheless carefully considered the objections which have been raged against a recovery. The Government employed the late Mr. Mellen as its legal adviser and attorney to collect a debt; it held out to him the fact that the indebtedness was for a very large amount, $77,304.98; it entered into an agreement with him providing that his compensation should be a percentage on the amount recovered and that he shoidd bear the expenses incident to collection ; it allowed him to make disbursements to a large amount, and it discharged him from its service with no real or alleged fault on his part, and when he had made substantially all the arrangements which resulted in'thé Government receiving ah of the indebtedness really owing, $52,899.79. It is therefore very clear that the claimant should recover unless there be some technical defect in or impediment to her case.

There are only three objections raised which need be spoken of.

The first is that all of the money received by the Government upon the indebtedness due to it was in' fact paid after Mr. Mel-len went out of the case, and therefore that he did not collect any of the debt. This is true if it be-taken in an absolutely literal sense. Mr. Mellen, having had absolute discretion given as to the manner in which he would prosecute or collect a claim against the estate of a deceased paymaster, succeeded in effecting an amicable arrangement, accompanied with most ample security, whereby the parties in possession of the estate should discharge the indebtedness by installments. The first installment under this agreement was payable on the 1st July, 1869. On the 29th June Mr. Mellen was dismissed by the Secretary of the Treasury. All of the indebtedness was, however, paid by the parties in the manner provided by the agreement, and the Government did nothing whatever toward collecting the debt except receiving the money. The case is precisely as if Mr. Mellen had elected to bring an action against the estate, and after it had been successfully prosecuted by Mm as attorney to judgment and execution issued, the Government should have dismissed their attorney and received the money made on the execution directly from the sheriff. No one would assume to say in such a case that, because the attorney was discharged before the sheriff paid over the money, the attorney did not collect it within the true intent and meaning of the contract. The court perceives no substantial distinction between the two cases, and is entirely satisfied that here there was a substantial performance of the contract, and that its termination by the Secretary of the Treasury relieved Mr. Mellen from no'subsequent duty or expense which can enter into or affect the measure of damages.

The second objection is that the contract upon which the suit rests expressly provided that the Secretary of the Treasury might at any time terminate it, in which event he was to “ award andqmj” to Mr. Mellen such compensation “as shall he just and equitableand hence that the rate of compensation is not necessarily that fixed by the agreement. A sufficient answer to this objection is that the court has found as a fact that the amount deduced from the compensation of the contract is a reasonable compensation for the services apart from the rate fixed by the •'agreement. In other words, if the court stand in the place of the Secretary and the recovery be restricted to quantum meruit, the result would be the same.

The third objection is that the cause of action has been the subject of accord and satisfaction.

In 1870, the Government being indebted to Mr. Mellen for various legal services rendered under another contract, having no relation to those which form the subject of this action, Mr. Mellen rendered to the Secretary of the Treasury a specific account therefor, showing a balance due to him of $7,756.57. There followed certain negotiations between the Secretary and Mr. Mellen, personally, which ended in the latter addressing to the former from New York a written communication, in which he says that he had determined to accept the Secretary’s verbal offer to pay him $6,000, in compromise and settlement of the balance claimed by him on the account rendered under that contract of July 17,1865; and he adds: “You will; therefore, please cause the same to be sent to me in check on the city as soon as yon can conveniently, and this letter may thereupon be taken as a full release and discharge of all claims under the said account or under the said contract

So far, there had not been the slightest reference between the parties to any other services or to any other contract; but the Secretary, five days later, indorsed upon the account his approval “ at $6,000, on the terms and conditions specified in the within memorandum,” and by the same indorsement referred the matter to the First Auditor “/or examination and settlement”; and the memorandum thus referred to stated that the $6,000 “is hereby allowed in full of all claims and demands upon the Government under the aforesaid contract or any other contract with the said Mellen,” and said.letter is hereby accepted as a full release and discharge by said Mellen of all indebtedness whatsoever from the United States to hiin.” No notice of this memorandum was given to Mr¡ Mellen, and, on the contrary, drafts were sent to him in New York in the manner requested by his letter before quoted.

If this case were to be tried at nisi prius, it would, we think, be indisputable that this memorandum of the Secretary should be excluded from the jury till knowledge or notice of it was brought home to the other party. It is equally clear, we think, now that the memorandum was ex parte, amounting at most to a direction to a subordinate officer to procure a general release before paying the money. Manifestly it was impossible for the • Secretary, by a private memorandum, to extend Mr. Mellen’s specific release of one indebtedness to a “full release of all indebtedness whatsoever.” An official memorandum of a Secretary is not a matter of record of which the public or persons dealing with the department are bound to take notice; it is not open to the inspection of the public, nor would a party be at liberty to go and examine it as a matter of right. Accord and satisfaction or compromise is a matter of agreement, and is to be liberally construed and carefully upheld; but a person accepting payment under a compromise does not do so at the peril of relinquishing a distinct debt which has not entered into his voluntary agreement.

The judgment of the coxu’t is that the claimant recover of the defendants the sum of $4,500.  