
    SAVAGE’S CASE.
    (8 Court of Claims R., 545 ; 92 U. S. R., 382.)
    Sarah C., executrix of William L. Savage, appellant, v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      The Act 17th. July, 1871, (12 Stat. L., p. 250,) authorizes the Seeretarxj of the Treasury to open books, under such regulations as he may prescribe, for subscript tions to a national loan, directing him also to give notice thereof in the public newspapers. The Secretary requires the subscriptions to be paid in “lawful coin,” and authorizes Jay Cooke to open the boolcs, who advertises that the bonds to be issued will be “ payable in gold.” They are not in terms made payable in gold. The claimant subscribes on the faith of the advertisement. When the bonds are called in- he accepts payment in papen', but malees protest and claims payment in gold. Se then brings his suit to recover the gold premium. The court below decides that under the Legal-tender Cases the bonds might be paid in money lenown as legal tender, and that the loan agents had no authority to pledge payment in gold. Judgment for the defendants. The claimant appeals.
    
    I. Acceptance of payment in one kind of money (Treasury notes) is a waiver of a claim antecedently asserted in gold. It discharges the debt independently of the question whether the paper-money is a legal tender.
    II. A protest is unavailing to save rights, if it he merely ex parte, and without legal efficacy to qualify a voluntary act of the party protesting. Ex. gr.: When one accepts payment in paper-money of United States bonds and surrenders them, the surrender must he held actual and complete, the protest going for nothing and saving no right of action.
    III. Duress rehuts the presumption of assent, and relieves a party from the effect of a compromiso procured by such means.
    IV. The burden of proof to establish duress is on the party alleging it.
    V. Unconditional acceptance of a medium of payment different from that promised, or absolute acceptance of a smaller sum than the one claimed, does not leave the defendant open to further claim on the ground of duress if the acceptance of the different medium or the smaller sum was voluntary, without intimidation, and with full knowledge of all the circumstances.
    VI. Where it appears that the claimant voluntarily entered into a compromise and accepted payment in full in a different medium from that promised, or of a smaller sum than that claimed, and executed a discharge in full for the whole claim, or voluntarily surrendered the evidence of the claim for cancellation, he cannot subsequently sue for any part of the claim relinquished in the compromise.
    
      The Reporters’ statement of the case:
    The court below found tbe following facts:
    In pursuance of the authority contained in the aAct to authorize a national loan, and for other purposes,” approved July 17,1861, (12 Stat. L., 259,) Jay Coolie, of the city of Philadelphia, Pa., was authorized by the Secretary of the Treasury to open a book for subscriptions for Treasury notes, payable in three years after date, bearing interest at the rate of 7T% per centum per an-num, payable semi-annually; and in reference thereto the said Secretary addressed to said Cooke a circular-letter of instructions, in which, among other things, were the following words-in reference to payments to be made by persons making subscriptions to said loan: “All payments must be made in the' lawful coin of the United States; ” and also the following words: “Whenever the amount subscribed shall not be paid within the period prescribed, the first payment shall be forfeited to the' United States.”
    In pursuance of the instructions contained in said letter, the-said Jay Cooke caused to be published on the 24th of September, 1861, in newspapers in the city of Philadelphia, an advertisement in the following terms:
    “NEW NATIONAL DOAN.
    “Oeeice oe Jay Cooke & Co., Bankeks,
    “No. 114 South Third, Street.
    
    “Pursuant to instructions from the Secretary of the Treasury, the subscription-books to the new national loan of Treasury notes, bearing interest at the rate of seven and three-tenths per cent, per annum, will remain open at my office, No. 114 South Third street, until further notice, from 8 a. m. till 5 p. m. and on Mondays till 9 p. m.
    “These notes will be of the denomination of fifty dollars, one hundred dollars, five hundred dollars, one thousand dollars, and five thousand dollars, and are all dated 19th of August, 1861, payable in gold in three years, or convertible into a twenty-year six-per-cent, loan, at the option of the holder. Each Treasury note has interest-coupons attached, which can be cut off and collected in gold at the Mint every six months, and at the rate of one cent per day on each fifty dollars.
    “Any explanations required by subscribers will be cheerfully made, and they will, by the plan adopted, be saved from any trouble of writing letters, the undersigned reporting each subscription to the Treasury Department, from whence the Treasury notes will be sent to each subscriber as soon as possible.
    “Payments of subscriptions may be made in gold or checks,, or notes of any of our city banks.
    “JAY COOKE,
    “ Subscription-agent, Wo. 114 South Third Street.”
    After the publication of said advertisement, William L. Savage, the claimant’s testator, then, in his life-time, became the purchaser of Treasury notes to the amount of fifteen thousand dollars, of tbe description named in said act and said advertisement; part of which notes, to wit, those amounting in the aggregate of principal to twelve thousand five hundred dollars, were dated August 19, 1861; and the remainder, amounting in the aggregate of principal to two thousand five hundred dollars, were dated October 1,1861. All of said notes were in the following form : “ Three years after date the United States promise to pay to the order of-=-,- dollars, with interest at 7t36 per cent., payable semi-annually.”
    On the 10th of December, 1864, the Secretary of the Treasury issued the following notice:
    “Treasury DEPARTMENT, December 10, 1864.
    “Notice is hereby given of the readiness of this Department to redeem, on presentation, by paymeub in lawful money, or by conversion into bonds, as authorized by law, the three-years Treasury notes, bearing interest at the rate of seven and three-tenths per centum, issued under the act of July 17,1861. Interest will cease on all such Treasury notes not so presented after three months from this date, at which time, under the law, the .right of conversion ceases.
    “Holders thereof will govern themselves accordingly.
    [SEAL.] “W. P. FESSENDEN,
    “ Secretary of the Treasury.”
    On the 22d of January, 1866, the claimant’s intestate, along with Moncure Eobinson, addressed to the Secretary of the Treasury a communication, insisting upon their legal right to have the said notes paid in gold.
    On the 3d of March, 1866, the claimant’s testator caused the said Treasury notes to be transmitted to Eiggs & Co., at Washington, D. 0., with instructions to, present the same at the Treasury and ask for the payment of the same, with interest, in gold; and if this should be refused, to accept the currency, under protest.
    On the 6bh of March, 1866, Eiggs & Co., inclosed the said notes to the Secretary of the Treasury in a letter, wherein, after ■describing the notes, they said as follows:
    “ We have received these overdue notes from a correspondent in Philadelphia, with instructions to present them at the Treasury Department and ask for payment of same, with interest, in gold; and, in case of refusal, to accept payment otherwise than in gold, under protest. We have already presented the notes at the Treasury Department, askiDg payment therefor, principal and interest, in accordance with our instructions, in gold, which was refused, and now beg respectfully to present the notes for payment in accordance with the terms proposed by the Treasury Department. At the same time we beg, under our instructions, to enter protest against payment otherwise than in gold.”
    On the 10th of March, 1866, the full amount of said notes, principal and interest, was paid to Eiggs & Co., as follows:
    Principal, paid in legal-tender notes of the United States.$16,000 00
    Last six months’ interest due thereon at the maturity of the notes, paid in gold. ' 547 50
    Interest accrued on the notes after their maturity, paid in legal-tender notes. 583 20
    Total.■. 16,130 70
    On the 6th of March, 1868, when the said notes were pre-presented, as aforesaid, by Eiggs & Co. to the Treasury Department for payment, gold coin was worth in the market a premium of thirty-two cents on the dollar over the legal-tender notes of the United States.
    
      Messrs. Conway Robinson and John Selden, for the appellants:
    The questions arise on a contract made under the Act July 17,1861, (12 Stats., 259,) which, among other provisions, contains the following:
    Section 1. Authorizing the Secretary of the Treasury to borrow on the credit of the United States, within twelve months, a sum not exceeding two hundred and fifty millions of dollars, for which he is authorized to issue Treasury notes of a denomination not less than fifty dollars, “payable three years after date, with interest at the rate of seven and three-tenths per centum per annum, payable semi-annually.”
    Sec. 2. Providing that the “Treasury notes shall be transferable by delivery.”
    Sec. 3. “That the Secretary of the Treasury shall cause books to be opened for subscription to the Treasury notes for fifty dollars and upwards, at such places as he may designate in the United States, and under such rules and regulations as he may prescribe, to be superintended by the assistant treasurers of the United States at their respective localities, and at other places by such depositaries, postmasters, and other pier-sons as he may designate, notice thereof being given in at least two daily papers of úis city, and in one or more public newspapers published in the several places where subscription-books may be opened.’’ “And the Secretary of the Treasury may also make such other rules and regulations as he may deem expedient touching the installment to be paid on any subscription at the time of subscribing, and further payments by installments or otherwise, and penalties for non-payment of any installment, and also concerning the receipt, deposit, and safe-keeping of money received from such subscriptions until the same can be placed in the possession of the official depositaries of the Treasury;” “and the Secretary of the Treasury is also authorized, if he shall deem it expedient, before opening books of subscription, as above provided, to exchange for coin or pay for public dues or for Treasury notes of the issue of 23d of December, 1857, and falling due on the 30th of June, 1881, or for Treasury notes issued and taken in exchange for such notes, any amount of said Treasury notes for $50, or upwards, not exceeding one hundred millions of dollars.”
    The Court of Claims find the following facts:
    That in pursuance of the authority contained in said act of July .17,1861, Jay Cooke, of the city of Philadelphia, was authorized by the Secretary of the Treasury to open a book for subscription for such Treasury notes; and in reference thereto said Secretary addressed to said Cooke a circular letter of instructions, stating among other things that “all payments must be made in the lawful coin of the United States;” and that “whenever the amount subscribed shall not be paid within the period prescribed, the first payment shall be forfeited to the United States.”
    That in pursuance of the instructions contained in said letter, there was published on the 24th of September, 1861, in newspapers in the city of Philadelphia, an advertisement signed “Jay Cooke, subscription agent, No. 114 South Third street,” stating among other things that said notes are all “payable in gold in three years, or convertible into a twenty-year six-percent, loan, at the option of the holder,” and that “each Treasury note has interest-coupons attached which can be cut off and collected in gold at the mint every six months.”
    That after the publication of said advertisement, the appellant’s testator became the purchaser of certain of said Treasury notes, whereof part, amounting in the aggregate of principal to $12,500, were dated August 19,1861, and the remainder, amounting in the aggregate of principal to $2,500, were dated October 1, 1861; the form of all of said notes being as follows: “ Three years after date the United States promise to pay to the order of •-,-dollars, with interest at 7T30- per cent., payable semi-annually.”
    That after the act of the 30th of June, 1861, (13 Stats., p. 219, § 3,) and after all the coupons for interest on the notes in question had been paid in gold, there was issued on the 10th of December, 1864, the notice, p. 8, signed “ W. P. Fessenden, Secretary of the Treasury.”
    That on the 22d of January, 1866, the appellant’s testator addressed to the Secretary of the Treasury a communication insisting (notwithstanding said notice) upon his right to payment in gold.
    
    That on the 6th of March, 1866, he caused, his said Treasury notes to be transmitted to Eiggs & Co., at Washington, with instructions to present the same at the Treasury for payment of the same with interest in gold; and if this should be refused, to accept the currency under protest.
    That on the 6bh of March, 1866, when gold coin was worth in the market a premium of 32 cents on the dollar over the legal-tender notes of the United States, Eiggs & Co. inclosed the testator’s said Treasury notes to the Secretary of the Treasury in a letter wherein, after stating their instructions and the presentation of the notes for payment in accordance ■ therewith, they “enter protest against payment otherwise than in gold.”
    That no payment was made until the 10th of March, 1866; and then, although there was payment in gold of the last six months’ interest due on the notes at their maturity, there was no payment on account of the principal except in notes worth in the market 32 cents in the dollar less than gold coin.
    This course of the then Secretary of the Treasury (or his assistant) did not tend to strengthen the public credit; and Congress deemed it important that it should be strengthened. Therefore the Act March 18,1869, (16 Stat. L., p. 1,) was passed, “to strengthen the public credit;’7 which contains the following provisions:
    “That in order to remove any doubt as to the purpose of the Government to discharge all just obligations to the public creditors, and to settle conflicting questions and interpretations of the laws by virtue of which such obligations have been contracted, it is hereby provided and declared that the faith of the United States is solemnly pledged to the payment in coin or its equivalent of all the obligations of the United States not bearing interest, known as United States notes, and of all the interest-bearing obligations of the United States, except in cases where the law authorizing the issue of any such obligation has expressly provided that the same may be paid in lawful money or other currency than gold and silver;77 “and the United States also solemnly pledges its faith to make provision at the earliest practicable period for the redemption of the United States notes in coin.77
    I. In England it has been considered “the duty of the court in administering the law to lay down rules calculated to prevent fraud.77 (Best, C. J., in Jones v. Bright, 5 Bingh., 542, 15 Eng. C. L.) “ The court has no wish to encourage77 “mere traps for buyers.” (S. 0., 714.)
    Whatever “formed part of the contract” “may be taken into consideration.77 (S. 0., 713.) Inasmuch as “ what the agent has said may be what constitutes the agreement of the principal, or the representations or statements made may be the foundation of or the inducement to the agreement, therefore,” Sir William Grant says, “ if writing is not necessary by law, evidence must be admitted to prove the agent did make that statement or representation, So, with regard to acts done, the words with which those acts are accompanied frequently tend to determine their quality. The party, therefore, to be bound by the act must be affected by the words.” (Fairlie v. Hastings, 10 Yes., 128.) In the language of Gibbs, J., “ when it is proved that A is agent of B, whatever A does, or says, or writes, in the making of a contract as agent of B, is admissible in evidence, because it is part of the contract which he makes for B, and therefore binds B.” (Langhorn v. Allnut, 4 Taunt., 519.) Statements of a gents an letters and otherwise were received in evidence in Coates■ et al. v. Bainbridge et al., (5 Bingh., 58, 15 Eng. 0. L.,) and Baring v. Ciarle, (10 Pick., 526.)
    
      By the act of July 17, 1861, the Secretary of the Treasury was authorized to borrow on the credit of the United States “ millions of dollars,” for which (that is, for the dollars borrowed} he was authorized to issue Treasury notes, “ payable three years after date, with interest at the rate of 7T30 per centum per annum, payable semi-annually.” In order to borrow the dollars wanted, the * Secretary of the Treasury caused a book to be opened at Philadelphia, under certain rules and regulations, to be superintended by Jay Cooke; and lest this agent should not know what was meant by dollars in the act of Congress, the Secretary prescribed in so many words that “all payments must be made in the lawful coin of the United States.”
    The authority conferred on Jay Cooke, to obtain subscriptions binding subscribers to pay in coin the amount of dollars subscribed, empowered him to do' what was necessary and proper for carrying into execution that authority. (Bayley v. Willcins, 7 Man. Gr. & S., 886, 62, Eng. O. L.) It was within the scope-of his authority to give answer to any reasonable inquiry made, give any explanation asked, by auy person contemplating subscription, or to give proper information to any persons whose subscriptions were desired.
    The Secretary of the Treasury may well be regarded as both desiring him to pursue and instructing him to pursue the very course which he did pursue. The application to borrow dollars did of itself import that dollars were to be returned ,• the Secretary’s declaration that “ all payments must be made in the lawful coin ” could not with propriety be limited to what was to be paid to, but was likewise to be applied to what was to be paid by, the United States in respect to the dollars borrowed. Common fairness requires that, the Secretary’s rules and regulations should be so interpreted; for it has long been considered a bad rule that does not work both ways •, and a rule working both ways had been plainly and distinctly enacted by Congress j and the law declaring such rule was then in force. (See Act 0/1846, §§ 18,19, 9 Stat., p. 6-1.)
    Whether the agent had “lawful authority to make the statement ” must of course depend, not upon laws passed after that statement was made, but upon those in force at the time the authority was conferred and exercised.
    The principals — not merely the Secretary of the Treasury, but the United States — have obtained “ performance of the contract by the other parties, and, of course, recognize the authority of their agent to procure it; ” they cannot, if they would, •deny being affected by the representations made by him for the purpose of procuring it. (Crump v. U. 8. Min. Co., 7 Grat., 368.)
    If by the plan adopted by the agent, “pursuant to instructions from the Secretary of the Treasury,” subscribers would be “saved from any trouble in writing letters,” it follows that ■the Secretary would be saved from trouble incident to receiving such letters. This consideration gives support to the inference that the plan was probably formed, that the draught of this or of a previous similar advertisement was probably made in the Treasury Department; and that the words “ payable in gold” were seen by the Secretary before publication of the advertisement. Upon the maxim “ omnia preesumuntur rite esse acta,” it may be presumed that the Secretary saw the notice which, under the Act July 17, 1861, (§ 3,) it was his duty to have in newspapers published in the city of Washington and in places where subscription-books were opened. (Bey. v. Ash-burton, 9 Adol. & EL, N. S., 876, 55 Eng. C. L.; Waddington v. Roberts, L. B.. 3 Q. B., p. 583 ; Wallcer v. Railway Company, Id., 5 0. P., 644; Cofield v. McClelland, 16 Wall., 344.)
    A well-known maxim of the law between private individuals is “omnis ratihabitio retrotrahitur et mandato priori eequipara-tur,” which means, as applied to cases of contract, that if A, unauthorized by B, makes a contract on B’s behalf with C, which B afterward recognizes and adopts, the contract is to be dealt with as having been originally made by B’s authority. (Bird v. Brown, 4 W. H. and G., 798; Coolc v. Tullis, 18 Wall., 332.) The same rule is applied to the act of the sovereign ratifying the act of one of his officers. The ratification of the Crown was held equivalent to a prior command in Baron v. Denman, (2 Id., 188.)
    II. It is not incumbent on the appellant to maintain that the mere statement in the advertisement did per se bind the United States to pay said notes in gold.. We might rely upon the doctrine, often laid down in this court, that what is implied in a statute or contract is as much a part of it as what is expressed. (United States v. Babbit, 1 Black, 61; Gelpclce v. City of Dubuque, 1 Wall., 221; Croxall v. Shererd, 5 Id., 283; Butz v. City of Muscatine, 8 Id., 581.) But in the present case there is no occasion to press that doctrine. For here we have in writing an express contract, created by the Secretary’s rules and regulations, the agent’s advertisement, and each of the notes in question. They, together, form one contract, (5 Eob. Pract., cli. 70, § 2, pp. 723, 724; Maülard v. Pace, L. B., 5 Exelieq., 313; Rogers v. Smith, 47 N. Y., 324.)
    Nor is there occasion for any further proof than appears in this record that the statement in the advertisement was an inducement or moving cause to purchase the notes. Under the contract and the laws in force at the time it was made, though the United States (by its authorized officer) be the maker, they are equally bound on this negotiable paper to a bona-fide holder thereof, whether he was an original subscriber therefor or was a purchaser thereof from or through such subscriber. (United States v. Bank of Metropolis, 15 Peters, 382; Bank of the Republic v. Millard, 15 Wall., 152.)
    The intent of Congress is manifest from its acts previous to that of July 17,1861; from that act under which the notes in question were issued; and from subsequent acts.
    The principle of the Act July 4,1840, (Stat. L., p. 19, §§ 19,20,) was preserved in that of Atigust 6, 1846, (9 Stat. L., 64,) which provided in section 18 that on the 1st of January, 1847, “all duties, taxes, sales of public lands, debts, and sums of money accruing or becoming due to the United States, and also all sums due for postage or otherwise to the General Post-Office Department, shall be paid in gold and silver coin only, or in Treasury notes issued under authority of the United States;” and, in section 19, that on the 1st of April, 1847, and thereafter, “every officer or agent engaged in making disbursements on account of the United States or of the General Post-Office shall make all payments in gold and silver coin, or in Treasury notes, if the creditor agree to receive said notes in payment.” Such provisions were also in the Act January 28, 1847, (9 Stat. L., ch. 5, §§ 4, 6, 9, p. 119,) and were in force at the time of the passage of the Act July 17,1861, under which the notes in question were issued.
    All the provisions of the Act December 23,1857, (11 Stat. L., 257,) so far as they could or might be applied to the Act July 17 1861, (12 Stat. L., 259,) and not therewith inconsistent, were thereby “ revived or re-enacted.”
    Of the Treasury notes not bearing interest which were authorized by tbe Act July 17, 1861, (12 Stat. L., 269,) this court has said: “These notes, made payable on demand, and receivable for all public dues, including duties on imports, always payable in coin, were practically equivalent to coin.” (Banlc v. Supervisors, 7 Wall., 28.) It is also true of the notes now in question, though not payable on demand, that, under an express provision of the act of December 23, 1857, re-enacted in the act of July 17, 1861, they were likewise receivable for “ all public dues, including duties on imports, always payable in coin.” But under the acts of August 6,1846, and January 28, 1847, they were payable “in gold and silver coin,” and could only be paid in other “Treasury notes, if the creditor agree to receive said notes in payment.”
    The plain and manifest intent of the act of July 17,1861, was to have the principal as well as the interest of the notes in question payable and paid in coin, unless the creditor should agree to receive other notes in payment. This act providing in so many words that there should be “ interest at the rate of seven and three-tenths per centum per annum,” and containing no provision that the interest should be paid in a representative of value different from that in which the principal was to be paid, or vice versa, it was a necessary effect of the law that there should be no difference between the representative of value in which the interest was payable and that in which the principal was payable; for the interest being on the principal, and being per annum a certain per centum, it could not be said that that precise per centum was paid if there existed as to the principal a right on the part of the debtor to make, or of' the creditor to require, payment in a representative of value different from that in which the interest was paid.
    The plainly-expressed intent, not only at the time of the passage of that act, but at the timeof the contract now in question, was that the holder of the notes should at the time thereby appointed for payment of what was thereby promised — whether interest or principal — be entitled to payment thereof in gold and silver coin. And effect should be given to such intent. (Gladstone, <&c., v. Chamberlain, &e., 7 Blatchf., 207.) For according to the opinion of a majority of this court at December term, 1868 — concurred in by Davis and Swayne, JJ. — an express contract to pay dollars in coin, made before the act of February 25,1862, can only be satisfied by the payment of coined dollars. 
      (Bronson v. Bodes, 7 Wall., 254, 255; Butler v. Eorwits, id., 258.) This decision was followed in Bronson v. Kimpton, (8 id., 444.) It was also followed by Strong, J., delivering the opinion of the court in Dewing v. Sears, (11 id., 279;) and, notwithstanding the so-called Legal-tender Oases, (Knox v. Lee an&ParJcer v. Davis, 12 id., 456,) has continued to give the rule properly applicable to the present case. (Trebilcoclc v. Wilson, id., 695.) The rule has recently been applied to an express contract to pay dollars in coin, although the contract was made since the act of February 25,1862; this court, upon libels against a steamer, saying : “As the advances were in gold, and the drafts on the owners in New York show that the payment to the libellants was to be made also in gold, the court below ruled rightly in directing its decrees to be entered for the amount due them in like currency.” (The Emily Souder, 17 Wall., 667, 672.)
    The suspension by the banks in December, 1861, of payment in coin (7 Wall., 29) led to the act of February 25,1862, (12 Stat. L., p. 315,) which came under consideration first at December term, 1865, in Ohang Kee v. United States, (3 Wall., 226,) and afterward, together with the Acts July 11, 1862, and March 3, 1863, (id., p. 532, 709,) at December term, 1868. Then, as to the notes authorized by these acts, this court said : It is “ clear that these notes are obligations of the United States. Their name imports obligation. Every one of these expresses upon its face an engagement of the nation to pay to the bearer a certain sum. The dollar-note is an engagement to pay a dollar, and the dollar intended is the coined dollar of the United S tates — a certain quantity in weight and fineness of gold or silver, authenticated as such by the stamp of the Government. No other dollars had before been recognized by the legislation of the national Government as lawful money.” (Bank v. Supervisors, 7 Wall., 39.)
    Impairing the obligation of the contract created by the notes now in question was not intended when by the Act June 30, 1864, (13 Stat. L., p. 219,) it was in the third section thereof provided that “ the interest on such Treasury notes after maturity shall be paid in lawful money.” Compliance with the contract required payment in coin of the interest for three years, and of the principal at the expiration of those three years; and required the interest for those three years to be at the rate of seven and three-tenths per centum; but Congress may have considered that interest between maturity and actual payment migh t be according to the general law. (Ward et al. v. Morrison et al., 1 Oar. So Marshm., 368, 41 Eng. 0. L.; Brewster v. Wake-field, 22 How., 118.)
    III. Although by the ninth section of the Act July 17, 1861, uthe faith of the United States was solemnly pledged for the payment,” yet there has not been real payment of the 15,000 coined dollars which the United States borrowed on that pledge.
    Doubt arose as to the purpose of the Government to discharge its just obligations to the public creditors. Therefore, Congress passed the Act March 18, 1869, (16 Stat. L., p. 1,) declaring that “the faith of the United States is solemnly pledged to the payment in coin or its equivalent” “of all the interest-bearing obligations of the United States, except in cases where the law authorizing the issue of any such obligations has expressly provided that the same may be paid in lawful money or other currency than gold and silver.”
    IV. The Court of Claims has not sufficiently heeded its own decisions in Reeside v. United States, (2 0. Ols. It., 55;) Ramsdell, v. United, States, (Id., 508;) Livingston’s Case, (3 Id., 131;) Child y. United States, (4 Id., 177 j) Tyers v. United States, (5 Id., 520.) The claim being a “ liquidated and ascertained sum, payment of part cannot be satisfaction of the whole,” {Barite, B., in Sibree v. Trig), 15 M. and W., 33,) “unless there be a good consideration for giving up the remainder.” (Barite, B., in Evans v. Bowis, 1 W. H. and G., Excheq., 606; 7 Bob. Pract., ch. 31, § 4, p. 534 et seq.) Of course payment of part cannot be satisfaction of the re.mainder when that remainder has never been given up, but its payment constantly insisted upon. In Connecticut, in 1850, Ellsworth, J., truly said : “It is no longer a question whether a payment of a part of a debt is a satisfaction of the whole, either considered as payment or as an accord and satisfaction. The payment of $100 is not of itself the payment of $200, nor is it an accord and satisfaction, for an accord is an agreement; but there is no agreement without a consideration, and receiving part only is no consideration for an agreement not to collect the rest; it is a nude pact.” (Warren v. Skinner, 20 Conn., 561.) In this court, at December term, 1868, it was “ not pretended that any real payment and satisfaction of an obligation to pay 1,507 coined dollars can be made by the tender of paper-money worth in the market only 670 coiued dollars.” (Bronson v. Bodes, 7 Wall., 245'.) In the present case it cannot be maintained that real payment and satisfaction of obligations to pay 15,000 coined dollars was made with paper-money worth in the market not more than $10,200.
    
      Mr. Solicitor-General Phillips for the appellees:
    1. Notes given by the United States in August and October, 1861, promising to pay to order of-,-dollars, with interest, &o., were subject to the provisions of the legal-tender acts subsequently passed. (Legal-tender Gases, 12 Wall., 457; Dooley v. Smith, 13 Wall., 604; Bigler v. Waller, 14 Wall., 298; Railroad v. Johnson, 15 Wall., 195.)
    The above are cases of private contract only, but their principle extends to contracts by the United States as well; the words of the legal-tender acts being that “ such notes herein authorized shall be receivable in payment * * of all claims an demands against the United States, of every bind whatsoever, except for interest upon bonds and notes, which shall be paid in coin ; and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest, as aforesaid.” (12 Stats., 345, 370, 532.)
    2. The advertisement by Cooke & Co., promising payment in specie, cannot affect the construction of the note, for several reasons:
    Granting, for the sake of argument, that Cooke & Co. were authorized to make representations at discretion in reference to the notes then in contemplation, nevertheless all that they said preliminary to the making of such notes was merged in the contract as made, just as all preliminary proposals, negotiations, and suggestions by parties on one side or another, whether oral or written, give way to the form of contract finally adopted. (Oelrichs et al. v. Ford, 23 How., 49.)
    This is the case universally, as it seems, unless fraud or mistake is shown. Something is said in the brief of the learned counsel for the appellants as to fraud here. But the test of that is whether equity would interfere to rectify the contract upon the case of fraud made.
    I suppose that no such thing can be pretended; and, besides that, those who read the advertisement of Cooke & Co., and who were privy to the act of July 17, 1861, to the provisions of which that advertisement professed to be conforming, understood it as merely expressing an opinion of the agents as to the law of the transaction; an opinion in which probably the subscribers coincided, and which also, as they believed, controlled as well the form of note actually thereafter issued.
    But the principle of law is plain, viz: That if the form of the-note as finally agreed upon gave to the promisees rights of only such extent and no more, these (in the absence of fraud) cannot be enlarged by showing that at some point in the preliminary negotiations words were spoken or written by the maker or his agent, which, if they had been introduced into the note,, would have had such an effect. Such terms were only deliberative, and upon consideration were abandoned.
    But it is neither averred nor proved that the testator ever saw or heard of the advertisement in question before he became a subscriber. The caution with which the petitioner abstains from any such allegation, upon a point so important in her view of the case, is significant, and, by the rule of pleading, requires the court to consider the present case as if the notes had been given without such previous advertisement.
    Besides, it must be conceded that Cooke & Co. had no-power to'bind the United States by notes of a form calculated to prevent the application of the provisions of the legal-tender acts. Supposing the point made in the first division of this brief to be well founded, it follows that the agents for giving effect to the act of July, 1861, were bound to make the notes substantially in the form finally adopted, i. e., so that Congress, if it chose, might thereafter control them by legal-tender legislation. All this was required by public law, and this was as well known to the testator as to Cooke & Co. As Mr. Savage was a resident of Philadelphia, he is chargeable with notice of the contents of a public act of the United States, and cannot be heard to complain that he was misled as to the meaning of such a statute by one who was no more bound to know that meaning-than himself.
    The rules of law which bind principals by certain assertions and actions of their agents, even beyond the extent of the commission actually given to the latter, have no application to agents or subagents intrusted with the execution of a statutory commission, as, in each case, the third party dealing with the agent or subagent is as privy to the extent of such commission as the latter is himself. He knows that there can be no other-authority than that specified in the law of the land.
   Mr. Justice Clifford

delivered tbe opinion of tbe court:

Power was conferred upon the Secretary of the Treasury, by the Act January 17, 1801, to borrow two hundred and fifty millions of dollars, for which he was authorized to issue bonds or Treasury notes, the Treasury notes to be of any denomination fixed by the Secretary, not less than fifty dollars, and to be payable three years after date, with interest at the rate of 7T37) per centum per annum, payable semi-annually. Section 3 provides that the Secretary shall cause books to be opened for subscription to the Treasury notes, for fifty dollars and upwards, at such places as he may designate, and under such rules and regulations as he may prescribe, to be superintended by the assistant treasurers at their respective localities, and at other places by snch depositaries, postmasters, and other persons as he may designate, giving notice thereof as therein directed. (12 Stat. L., 259.)

Pursuant to the authority conferred the Secretary appointed Jay Cooke one of the special agents to open a book for subscriptions to the Treasury notes, and it appears that the Secretary addressed to him, as such special agent, a circular letter of instructions, in which, among other things, he stated that “ all payineuts must be made in the lawful coin of the United States, and that whenever the amount subscribed shall not be paid within the period prescribed, the first payment shall be forfeited to the United States.”

Sufficient appears in the finding of the court to show that the special agent opened a book for subscriptions, and that he published an advertisement describing what the denominations of the notes would be, and giving the date when they would be issued, and that he stated that the notes would be “payable in gold in three years, or be convertible into a twenty-year six-per-cent. loan, at the option of the holder. That each note would have interest-coupons attached, which could be cut off and collected in gold at the mint every six months, and at the rate of interest therein prescribed.”

Subsequent to the publication of that advertisement, the testator of the plaintiff, then in full life, became the purchaser of Treasury notes to the amount of fifteen thousand dollars, of the description named in the act of Congress and the advertisement, dated as described in the finding of the court, and it appears that all of the notes were in the following form : “ Three years after date the United States promise to pay to the order of - --dollars, with interest at 7T3g-per cent., payable semi-annually.”

On the 10th of December, 1864, the Secretary gave notice that the Department was ready to redeem the notes on presentation, and that he would pay the same in lawful money, or by converting the same into bonds as authorized by law, and that interest would cease on all such notes not so presented after three months from that date, at which time the right of conversion would also cease.

Throughout, the testator of the plaintiff insisted that it was his right to have the notes paid in gold, and on the 3d of March, 1866, he caused the notes to be transmitted here to certain bankers, with instructions to present the same at the Treasury and ask for the payment of the same, with interest, in gold, and with directions, that if the payment in gold was refused, to accept the currency, under protest. Payment in gold was subsequently refused, and the agents accepted the principal and interest after maturity in legal-tender notes, under protest, as directed by their employer.

Gold at the time the notes were presented was worth in the market a premium of 32 cents on the dollar over the legal-tender notes accepted in payment by the agents acting for the testator of the plaintiff. He demanded payment in gold, but his agents accepted the currency under protest, by his directions, the payment in gold having been refused.

Based on these facts the executrix of the decedent instituted the present suit in the Court of Claims to recover the difference in the market-value of gold and legal-tender notes at the date of the payment made by the United States to the testator of the plaintiff. Judgment was rendered for the defendants in the court below and the plaintiff appealed to this court. Appended to the finding of facts are the conclusions of law reported by the court, which, in the view taken of the case, it will not be necessary to reproduce for separate- examination.

Four errors are assigned by the present plaintiff: (1) That the court below erred in holding that the subscription-agent had no lawful authority to make the statement, contained in the advertisement, that the Treasury notes were payable in gold. (2) That the same court erred in holding that the statement, and what appears in the record in connection therewith, did not in law l)ind the defendants to pay the notes in gold. (3) That the court erred in holding that the notes were lawfully paid by the defendants in the legal-tender notes. (4) That the court erred in holding that the plaintiff, as executrix of the decedent, had no right of action, as against the defendants, to recover the difference in value at that time between the legal-tender notes and gold.

Questions not necessarily involved in the matters of fact found by the court below will not be re-examined, even though they are presented in the assignment of errors. Controversies between parties usually depend, in the first instance, upon the matters of fact, out of which the controversy in the particular case arises, and it often happens, even when it is suggested that the decision depends upon the legal questions presented, that it is nevertheless important to examine the facts with care, in order to ascertain whether the supposed legal questions do actually arise in the case.

Payment of the Treasury notes was accepted by the testator of the plaintiff, and it appears that he, at the time the payment was made, then being in full life, surrendered the notes to the Secretary for cancellation. Neither deception, mistake, nor undue advantage is suggested, but the whole record shows that it was an honest difference of opinion between the Secretary and the decedent as to the rights of the parties, and that it terminated by the voluntary acceptance of the legal-tender notes, on the part of the agents of the decedent, in lieu of gold, as offered by the Secretary, and by the surrender of the Treasury notes to him for the United States. Such an acceptance of payment was a waiver of the claim antecedently made, and amounted to a full discharge of the same, independently of the question whether the notes accepted in payment are or are not a legal-tender, as insisted by the counsel for the defendants.

Had not the Treasury notes held by the decedent been surrendered to the United States, the effect of the acceptance of the currency notes in payment might possibly have been different, but it is clear that a protest under such circumstances is utterly insufficient to qualify the effect of the waiver evidenced by the acceptance of what was offered in payment of the Treasury notes in lieu of gold. Gold was claimed, but the Secretary refused to pay in that medium, and the agents> of the decedent, acting in pursuance of Ms instructions, accepted the medium offered by the Secretary, knowing full well that it was offered in full discharge of the Treasury notes, and it appears that they not only accepted the medium of payment offered' by the Secretary, but surrendered the Treasury notes to the Secretary as the well-known financial agent of the United States.

Actual surrender of the Treasury notes to the Secretary was a condition precedent to the right of the Secretary to redeem the same, and that fact was as well known to the agents of the decedent as to the Secretary, and it must be that they knew full well that the payment of the Treasury notes could not be made uuless the surrender was absolute and unconditional.

Viewed in the light of these suggestions, it must be held that the protest, being unauthorized by law, was a mere ex parte act, without any legal efficacy to qualify the voluntary surrender of the Treasury notes, which both parties understood to be absolute and unconditional.

Due protest at the time of paying customs duties has the effect to give the merchant the right to sue the collector to recover back duties illegally exacted, because the act of Congress provides that the protest in such a case shall have that effect, (5 Stat. L., 727.) Congress might, doubtless, give a corresponding effect to such a protest, in a case like the one before the court, but it is scarcely necessary to remark that there is no such statutory provision, and in the absence of it the ruling must be that the protest is wholly insufficient to qualify the absolute and unconditional surrender of the Treasury notes.

Enough appears to show that the surrender was made with a full knowledge of all the circumstances, and without the least compulsion; that the Secretary gave public notice that the Department was ready to redeem the notes, on presentation, by paying the amount in lawful money, or by converting the same into bonds, as authorized by law. Treasury notes of the kind, to a large amount, were overdue, and the holders of the same were given the option to accept payment in legal-tender notes or in the bonds authorized by law, and they were informed that interest on all such as should not be presented within the next three months would cease from the expiration of the period allowed for their presentation.

Fifteen thousand dollars of the Treasury notes were held by the decedent, then in full -life, and he claimed that he should be paid in gold, and it appears that the' Secretary refused to make the payment in that medium, and insisted that the United States had the right to redeem the same or make the payment in the manner proposed in the published notice. Payment in gold being refused,, the decedent transmitted the overdue notes to his agents here, with instructions to accept payment, under protest, in accordance with the terms proposed by the Secretary ; and the finding of the court shows that his agents obeyed his instructions, and that the whole amount of the notes presented, including the interest thereon after maturity, was paid in the medium proposed by the Secretary.

Prompt payment, no doubt, was desired, but the decedent was under no legal compulsion to accept any other medium of payment than that which he demanded. Both he and his agents were, doubtless, convinced that the Secretary would not recede from the position he had taken, but he was at perfect liberty to reject the terms proposed and to refuse to surrender the overdue securities which he held.

Duress, if proved, would rebut the presumption of assent, and would, doubtless, be sufficient to relieve a party in such a case from the effect of a compromise procured by such means; but the burden of proof to establish such a 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.

Unconditional acceptance of a medium of payment different from that promised by the United States, or absolute acceptance of a smaller sum from the Secretary of the Treasury than the one claimed from the United States, even in a case where the amount relinquished is large, does not leave the United States open to further claim on the ground of duress, if the acceptance of the different medium or the smaller sum is voluntary, and without intimidation, and with a full knowledge of all the circumstances; nor is the case changed if it appears that the claimant was induced to accept the different medium or the smaller sum in full as a means to secure an earlier payment of the claim than he could otherwise hope to procure. (Mason’s Case, 17 Wall., 74.)

Parties having claims agaiust the United States, which are disputed by the officers authorized to adjust the same, may compromise the claim and may accept payment in a different-medium from that promised, or may accept a smaller sum thau that claimed; aud where it appears that the claimau tvoluntarily entered into a compromise and accepted payment in full in a different medium from that promised, or accepted a smaller sum than that claimed and executed a discharge in full for the whole claim, or voluntarily surrendered to the proper officer the'evidences of the claim for cancellation, he cannot .subsequently sue the United States and recover in the Court of Claims for any part of the claim voluntarily relinquished in the compromise. (Sweeny’s Case, 17 Id., 77; Childs's Case, 12 Id., 244; Justice's Case, 14 Id., 549.)

Decisions of the kind by this court are quite numerous, and they show beyond all doubt that parties may adjust their own controversies in' their own way, and that when they do so voluntarily and with a full knowledge of their rights and all the ■circumstances, no appeal lies to the courts to review their mutual decision. Courts cannot make contracts for parties, and if parties understandingly contract to adjust a controversy between them in a particular way, and actually execute the contract, they are both bound to regard the controversy as at an end.

Taken as a whole, the findings of the court below show beyond all'doubt that the decedent, voluntarily and with a full knowledge of all the circumstances, elected to accept payment of the Treasury notes in the manner proposed by the Secretary, and that the surrender of the same to the United States was absolute and unconditional. Nothing less can be inferred from the communication of his agents inclosing the securities when the same were transmitted for redemption, in which his agents say that they “ present the notes for payment in accordance with the terms proposed" by the Department. Such an acceptance, if intended to waive every variation from the terms antecedently demanded, could hardly be more complete or •explicit, nor is its real character changed in any respect by the fact that the agents asked leave in the same communication “ to enter protest, under their instructions, against payment otherwise than in gold.”

They surrendered the securities and asked leave to enter the protest in the same communication, which was in effect saying, Our principal still thinks he ought to be paid in gold, but inasmuch as the Department declines topayin that medium, he has decided to accept payment in the medium which you propose.

Suppose the controversy had respect to the sale and purchase of an article of personal property, instead of the redemption of Treasury notes, and that it appeared that the price asked by the owner was one hundred dollars, and that a person desiring to purchase the same had offered the owner ninety dollars for it, which the owner at the time declined to accept. Of course the bargain, in that state of the case, would not be complete; but suppose the owner of the article should subsequently forward the same to the person who made the offer, informing him' that he would accept the offer, no one, it is presumed, would hesitate to decide that the voluntary acceptance of the offer concluded the bargain, if the person who made the offer elected to pay the money, even though the seller might have written in the same communication that he ought to have ten dollars more, and should protest that the article was worth the whole amount he asked for it in the prior negotiations. [Remarks of the kind would not have the effect to qualify the acceptance of the offer and the unconditional delivery of the article.

Apply that rule to the case before the court, and it is clear that the protest of the agents did not have the effect to qualify the voluntary acceptance of the terms proposed by the Secretary, and the absolute and unqualified surrender of the securities to the United States, and that there is no error in the record.

Judgment affirmed.  