dissenting:
I think the court has interpreted the forfeiture provision of 28 U. S. Code 2514 too narrowly. The plaintiffs had a contract under which they were to receive, as their compensation, the reimbursement of their costs of performance, plus a fixed fee. In its Special Plea in Fraud the Government alleges that they padded their costs of performance, and thereby received some $32,000 more of reimbursement of costs than they were entitled to. The present suit by the plaintiffs is for the unpaid balance of the agreed fixed fee. The court sustains the plaintiffs’ demurrer to the Government’s plea, on the ground that the fraud alleged was not committed in regard to the claim sued on.
I agree that the forfeiture statute was not intended to forfeit an otherwise valid claim of a claimant merely because, *348in some other unrelated transaction, lie had defrauded the Government. But where the alleged fraud was committed in regard to the very contract upon which the suit is brought, I think the court does not have the right to divide the contract into separate items, and allow recovery on some items, though other items were dishonestly performed. That would mean that if one contracted to deliver hay, oats, and com to the Government at unit prices for each commodity, based on units of weight, and he presented false weights for the oats, but not for the hay or corn, he could obtain a judgment against the Government for the hay and corn.
I think the “claim” to which the statute refers is, in the case of a contract, the claim to enforce the contract. Much or little of it may remain unperformed by the Government at the time the suit is brought, but. the suit is on the contract, and the contract, the basis of the claim, is, I think, forfeited.
Chief Judge Jones concurs in the foregoing, opinion.