Bates v. Thompson , 61 Tex. 335 ( 1884 )

Delany, J. Com. App.—

Of the thirty-three assignments of error the greater part have been abandoned, and of those which have not been abandoned only a few will call for discussion.

We are not prepared to say that the court erred in its findings of .fact. Considering the uncertainty and conflict of evidence which the record exhibits, those findings are perhaps as well sustained as any which might be substituted in their place.

The principal and most difficult question in the case is to determine the fees to which appellant was entitled in the premises. And it presents this peculiarity: that although counsel for appellant strongly insist that the amount awarded to him by the court was too small, yet they seem uncertain as to the amount which he ought to receive, and as to the ground upon which they would place his right to recover any particular sum.

Sometimes they seem to rely upon the contract of December 10, 1880, which would give the defendant $5.60 for each certificate filed. Then they insist upon an implied contract, which would give the defendant for some of the certificates $11, for others $12, and for others $16.

Again, they suggest that appellant was entitled to all the fees which accrued in the progress of the work — that is, to the office fees for signing and recording field notes, and also to the fees for work done in the field. This would give,him $2 for each certificate; that is, $1 for signing and recording each set of field notes, and $3 for each lineal mile actually run in making the surveys.

The plaintiff, however, paid all the expenses of the field work, including the sums paid to the deputy who made the surveys.

Upon this state of the case it is suggested by appellant’s counsel, that, as the plaintiff did not plead the expenses of the surveys in set off against the defendant’s claim for legal fees, the latter is entitled to demand full fees, both for office work and for work in the field, without any regard to the expenses.

In the account which the defendant presented to the plaintiff on November 18, 1881, after all the work was done, he claimed a balance of $6,935.

In making out that account he does not seem to have regarded himself as entitled to claim any fees for work done in the field. His charges are for “ filing, recording and signing field notes of the following described land scrip.” For one hundred and thirty-five certificates he charges $12 each, and for all the others $16 each.

On the trial below the court limited the right of the defendant to the fees accruing from the work performed by him — that is, to $1 for signing and recording each set of field notes; and, as he had done no work in the field, it was held that he had no claim upon the plaintiff for that work.

Was this ruling correct? In our opinion it was correct as be- • tween the parties before the court, and as an adjudication upon the facts of this case. This is not a contest between the principal surveyor and his deputy as to their respective interests in the fees and perquisites of the office.

The statute which prescribes the fees of surveyors gives them all to the county and district surveyors (R. S., 2406). It does not even mention the deputies; and yet we think they are included in the general names as well as the principal surveyors.

In the first place, the statute just quoted is almost a literal copy of the thirteenth section of the act of March 10, 1848, fixing thfees of office. Pasch. Dig., 3823.

That section, like the present statute, overlooked the deputies and speaks of the surveyor only. But the first section of the same act (Pasch. Dig., 3811) recognized the rights of deputy surveyors, as well as of the principals, to fees for the work done by them.

Prom our earliest history the duties of these officers have been, to a considerable extent, under the direction of the commissioner of the general land office, and the work in the field has generally been done by the deputies. Peacock v. Hammond, 6 Tex., 544; Lewis v. Durst, 10 ex., 398.

The statutes directing the appointment and prescribing the duties of deputy surveyors plainly show that they are still required to do the field work. R. S., arts. 3840-42. And we have no statute which makes it the duty of the principal surveyor to do such work.

The act of December 20, 1831, provides that the county surveyor may do the work of a practical surveyor, and may also perform all the duties required of a deputy; but it does not require him to do so. This provision is copied into the Revised Statutes, art. 3843.

If we turn now to the act regulating the fees of surveyors (R. S., 2406), it is easy to see that, in the absence of any agreement on the subject, the fees for field work would properly fall to the deputy surveyor.

It is not necessary, however, that we should express any opinion as to the relative rights of the tivo in a contest between themselves.

In this case, however, as there was no agreement between the parties, and as the services of the deputy as well as the other expenses were paid for by the plaintiff, Ave do not think that the court erred in deciding against the claim of the defendant.

The remaining points seem not of sufficient importance to demand a discussion.

Our opinion is that the judgment should be affirmed.

Affirmed.

[Opinion adopted March 28, 1884.]