
    M'Dowell and others executors of Woods against Ingersoll.
    
      Monday, March 29.
    Where a deputy surveyor, in surveying a body of lands, merely ran the exterior line, without running and marking the intermediate lines of the tracts, as the act of assembly requires, held, that he was not entitled to recover upon a quantum meruit, for his services.
    An usage set up by a deputy surveyor from motives of convenience to themselves, of running only the exte-where it is not rior hues of the survey of a large body of lands, is not binding on their employers, shewn, that the latter knew of the usage at the time.
    THIS was an action of assumpsit, brought by John M'-Doxvell and two others, as executors of George Woods de- . _ , . ° ceased, formerly deputy surveyor of Bedford county, against Jared Ingersoll, to recover the fees due for surveying a body of land in Bedford county. The merits of the case, together with the opinions of the Judges of the Supreme Court, are fully stated in the report of the trial of a former suit, brought by George Woods against Jared Ingersoll and Alexander J. Dallas, for the same cause of action, in the first volume of Mr. Binnefs Reports, page 146.
    On the trial of the present action, before Gibson J. at Nisi Prius, in”March, 1818, he charged the jury, that an actual running of the outline of a body of lands was sufficient to vest the title as to third persons ; but the act of 8th April, 1783, regulated the duties of the surveyor as to his employer. There was a difference between title and compensation to the officer; and the warrantee was entitled to have all the lines run and marked. That fees are given by the law for complete services; and custom cannot alter the law which directs how fees shall be earned. The party to be benefited may, if h^ please, wave them in part, and then if nothing be said as to the officer having a less compensation than the legal fees, the officer will be entitled to full fees. But if the waver be accompanied by a stipulation for a particular sum less than the legal fees, or for a compensation proportioned to the real value of the services actually performed, such contract will be binding between the parties, and the officer will be entitled to such sum or compensation, and nothing more. But if the officer, without the permission or assent of his employer, leaves any part of the duty unperformed, which the law enjoins him to perform, he cannot claim, either the legal fees, or a compensation proportioned to what he actually performs ; he can claim nothing. He, therefore, left it to the jury, whether Woods executed these surveys imperfectly, with the assent of Messrs. Ingersoll and Dallas. If they assented to it, and there was no stipulation for a compensation less than the law allows for full services, the plaintiff will be entitled to full fees. But if there was no assent, and Woods acted of his own accord, he will be entitled to nothing.
    He further directed the jury, that the only circumstance that could at all justify an inference of such assent, was the evidence of a custom among the deputy surveyors to run the outline only, where lands were in a body. If Messrs. Ingersoll and Dallas knew of that custom, and put their warrants into the hands of the deputy surveyor without particular instructions, it might perhaps be inferred, that there was a common understanding between them and the officer to have the surveys made according to the custom. But there was no evidence that they knew of the custom.
    The jury found a verdict for the defendant, and a rule was granted to shew cause why there should not be a new trial.
    
      Rawle, for the defendant,
    contended, that the Judge had misdirected the jury in his charge.
    1st. The Judge charged the jury, that although the survey as made, would entitle the warrantee to a patent, yet the surveyor was not entitled to his fees. Although the directions of the law were not altogether complied with, yet the defendant had reaped the benefit of services performed by the plaintiff at his request, and therefore the latter was entitied to a compensation in proportion. If the lands had been valuable, the defendant would have proceeded to take out patents, and his having been imposed on by other persons as to the quality, was no reason why the deputy surveyor should lose his fees, for labour and service actually rendered on the plaintiff’s account. In Woods v. Ingersoll,(a) a majority of the Supreme Court were of opinion, that the plaintiff was entitled to a quantum meruit for his services; and Judge Yeates thought he ought to recover the whole of his claim, after deducting the interest.
    2d. The Judge directed the jury, that although there was an usage, authorising an imperfect survey, yet unless the defendant knew it, he was not bound by it. If the existence of the usage was satisfactorily proved, it was immaterial whether the defendant knew it or not. In dealings on which that usage was to operate, it was the duty of the defendant to know it. The usage in this state, of making a general survey of company warrants, including them all in one outline, has long prevailed, and has been recognised in this Court and in the Courts of the United States. It is not in the power of the plaintiff to prove, that the defendant knew of this usage. The same principles apply in relation to it that govern in commercial cases, where it is considered as binding as if inserted in the contract, and every party contracting is bound to know it. 1 Marsh. Ins. 186. 226. 259. 9 Mass. Rep. 155.
    
      Binney and Levy, contra,
    contended, that the case of Woods v. Ingersoll had no bearing on this case. The facts of this case were different; and as to the law, that case only decided that running the exterior lines would give title sufficient to call for a patent,'and that the deputy surveyor was not entitled to his whole fees. The demand for a portion, as there was no express contract, must rest on the act of assembly or on usage. The act of assembly of the 8th April', 1785, expressly enacts, that surveys shall be made by going upon and measuring the land, and marking the lines. The 21st section provides, that the fees of the deputy surveyor shall be “ the following and none other.” As the plaintiff did not conform to that act, he cannot claim under it. They insisted, that where there is an express contract, the party cannot recover unless the whole is performed according to the contract, and cited, 2 Saund. 122, note 2. 2 Mass. Rep. 148. Irwin v. The Commissioners.
      
       3 Vin. 7. pl. 3, 4.
    2. The usage contended for was a violation of duty, and a direct breach of the act of assembly. If this be a binding’ usage, the surveyor has a right to make his survey in that way. It was a practice introduced by the deputy surveyors for their own ease, without the knowledge of the warrantees. It was for a long time unknown to their employers, and it was a favourable charge on the part of the Judge to say, that the defendant was bound by the usage even if he knew it.
    
      
       1 Binn. 146.
    
    
      
       1 Serg. & Rawle, 505.
      
    
   The opinion of the Court was delivered by

Gibson J.

The act of 1785 prescribes the services to be rendered by deputy surveyors to their employers, and the fees that may be demanded as a compensation. It is extremely clear, that where the services enjoined by the act have not been fully rendered, the officer is not entitled to any thing by virtue of the provisions of the act, which gives nothing for incomplete services. Now, it is expressly made the dut^p.f.-the surveyor, where he is not otherwise directed by the Owner of the warrant, to make every survey by going on the ground, and running, marking, and measuring, the lines of each tract. It is very true, the running and marking the outline of a number of tracts laid in one body, will vest the title, and be a sufficient appropriation of the included land as against the commonwealth, and every person claiming under her. This doctrine has been uniformly held by this Court, and to hesitate now, would be pregnant with mischief. But that is a very different question from the officers’ right to fees. The legislature in designating the acts of duty he was bound to perform, had in view a survey and single warrant, and not the collocation of a number of warrants by one survey. The owner of warrants thus located, has a right to have the intermediate lines run and marked, precisely as if each warrant had been surveyed separately : and it is the official duty of the officer to do it without being specially required. This duty was not introduced for the first time by the act of 1/8S; but existed under the proprietary government. When a warrant is put into a deputy surveyor’s hands for execution without particular instructions, he undertakes to perform all the duties prescribed by law ; and the contract between the parties having reference to the existing law, is as definite as to the particulars embraced, as if the acts to be done were specially expressed. The contract is entire; and if the officer voluntarily leaves a part of it unperformed, he cannot recover any thing, either as fees by virtue of the provisions of the act, or a compensation on principles of common law. The party, however, for whose benefit the service is to be performed, may, if he please, wave a part of it, and either throw-in to the officer the labour thereby saved, or, in consideration of it, stipulate for a compensation less than the legal fees, and such contract will be binding. This is the only exception to the rule; for it cannot be, that the surveyor can, without the assent of his employer, change the terms of the agreement, and of his own mere will dispense with any part of the duties enjoined on him by law. But it seems that in executing what are called “ company warrants,” a custom has prevailed among deputy surveyors of making a general survey including them all in an outline, as was done in this cáse ; and this custom is relied on as giving the officer a right, if npt to full fees, at least to a compensation proportioned to the value of the services actually rendered. On this point I instructed the jury, that if Messrs. Dallas and Ingersoll in fact knew of the existence of this custom when they put their warrants into the deputy' surveyor’s hands without special instruct tions, the fact of their knowledge would be evidence from which an assent to have the surveys made according to the custom might be presumed ; and the matter was thus subr mitted to the jury on ground as favourable to the plaintiffs as they had any right to require. It is further contended that this practice — for it cannot be called a custom — is so general and so firmly established,that Messrs.Dallas andihj-erso/iwere bound to take notice of it, and their having been in fact ignorant of its existence is immaterial. To this it is a sufficient answer, that when this survey was made, the practice had been continued in the face of a statute designed to prevent it. It was established at a time when its operation, even on the validity of the title to land thus surveyed, was neither known nor cared for. All that deputy surveyors knew with certainty was, that the practice was a bad one, and a violation R>eir duty. It originated in indolence and motives of personal convenience to the officer : in an endeavour to obtain the compensation allowed, without rendering the services enjoined, by the law: and in a total disregard of its consequences to the public, which at that time could not be foreseen, but which have since been found extremely mischievous, and productive of much uncertainty and litigation as to boundary. This custom, having thus originated, and thus operating, could not, even were the act of assembly out of the way, have the force of a law ; and if it have not, no one is bound to take notice of it. It is not like a particular usage of trade, resorted to for the purpose of expounding the contract of insurance where its meaning would be otherwise doubtful; for in that case, there is no other standard by which to measure the subject matter of the agreement: here the act of assembly furnishes a safer, and the only, standard. If the practice had the force contended for, it would bind, even against the assent of the party ; and the officer might even refuse to comply with special instructions, where they were in fact given, and yet recover his fees : and if this cannot be successfully pretended, how can it be urged that he is entitled, to either full fees, or a quantum meruit, where the owner of the warrant cannot be supposed to have waved any part of the service the law authorised him to exact ? The difficulty arises in the mind, from considering that such a survey entitles the owner of the warrants to a patent for each tract; conducing in this way in some degree to his benefit; and that the officer therefore has a conscionable claim to compensation proportioned to the benefit received from his labour. But it is not every benefit conferred that will raise-an assumpsit. The services here rendered, were not those which the officer was requested to perform ; and the law will not imply an assumpsit from a moral obligation only. I cannot, however, discover even a moral obligation on the part of the employer. The extent of the officer’s merit is, that he has not entirely destroyed by his misconduct the title of the warrant-holder to the land located; but the positive benefit to the latter is comparatively nothing; as a re-survey is necessary to designate each tract separately, in making which, the lines, before run and marked are of little use. The rule to shew cause must be discharged.

Duncan J.,

gave no opinion, having been concerned for the defendant.

Rule discharged.  