Ross v. Evans

Tilguman C. J.

The plaintiff’s action is for surveying work done at the request of J. Wallis deceased, who was a deputy surveyor. The declaration contained a count in indebitatus assumpsit for work &c. done by the plaintiff; another for money paid by the plaintiff for the use of the defendant; and a third for money had and received by7 the defendant for the use of the plaintiff. In the argument in this court, the defendant’s counsel have urged some objections which were not made at the trial, to the relevancy of the evidence as applied to the declaration. But I am not disposed after a verdict to pay much regard to exceptions not relied on at the trial, and no way bearing on the merits of the cause. On a motion for a new trial, the great question is, whether the justice of the case has been attained?

There is one exception, and but one which appears to have any weight, and that I shall proceed to consider. The law directs, that all the lines of a survey should be run and marked on the ground. The defendant says, that the plaintiff did not run all the lines of the surveys made by him, and therefore he ought not to have the full price of a survey regularly made. It should be here remarked that it was proved that Wallis had allowed, to other persons employed by him, one third of his official fees, but there was no evidence of any particular agreement between him and the plaintiff. It was held by this court in the case of Woods v. Ingersoll &c. that a surveyor was not intitled to his full fees, where the survey was imperfectly made. And if this had been a suit by Wallis against any of the persons for whom the surveys were made, there is no doubt but his account would have been docked, unless it had .appeared, that the manner of making the surveys was known and consented to. The plaintiff contends that where the lines were not run, the parties interested knew of it and were satisfied; that Wallis accepted the work, as it was done, and took the benefit of it, by charging and receiving his full official fees; and there was proof, that he had received his full fees for a considerable number of surveys. If in fact Wallis received the full benefit of the plaintiff’s work, the objection which has been taken, would come with an ill grace from the mouth of his administrator. I can perceive no error in law1, in the charge of the judge who tried this cause. It was substantially to this effect: That if the owners of the surveys were satisfied, the surveys adopted by the principal, and the full fees received by him, he ought not to object to the manner of doing the work. Whether this was the case he left to the jury. It has considerable weight with me, that the judge declares himself perfectly satisfied with the verdict. The view of the evidence which this court can take, is at best but imperfect. Many circumstances are omitted by the most accurate note taker. And of the credibility of the witnesses we know nothing. There are one or two features of this case, which strike me as unfavourable to anew trial. Fifteen years have elapsed since this work was done. It must be presumed that in most instances the surveys have been returned; and we know that the returns are never made till the fees are paid. The defendant produced no proof whatever, that in any instance the owners of the survey refused to pay the fees; and I think that he was unreasonable in calling on the plaintiff to produce proof that warrants were issued in all the cases, in which surveys had been made, when the documents of the plaintiff’s work were necessarily put into the hands of Mr. Wallis, and the defendant might easily have known whether warrants were issued or not. He stood on the defensive, and produced no evidence. The plaintiff has been kept a long time out of his money, and the jury allowed him no interest. I think it most probable, that in many cases the surveys were not completely made. But still, considering all circumstances, there is great reason to suppose that Wallis has reaped the fruits of them. I am not satisfied that the defendant has been wronged by the verdict. That being the case, the jury having decided on the merits, and finding no misdirection in point of law, I must ‘ give my opinion that the judgment of the Circuit Court be affirmed.

Ye ates J. concurred.

Judgment affirmed.