
    * Poage v. Willson.
    February, 1831.
    (Absent Coalter, J.)
    Equity Jurisdiction — Account—Remedy at Law. — Bill in chancery, praying an account, and a decree for the balance which should be found due, upon a claim, on which an action at law would have lain, without shewing any obstacle which would defeat or embarrass the legal remedy: HjsijD, the court of chancery has no j urisdiction.
    By articles of agreement under seal, between Poage and Willson, executed the 27th December 1794, Poage covenanted, that he would locate land warrants, for and in the name of Willson, on waste and unappropriated lands in Virginia, to the amount of 50,000 acres, and survey and make out plats of the lands so located, with certificates of survey, so as to be received at the land office clear of all expense, on or before the 1st May 1795, and that Poage, at the time of delivering the plats and certificates of survey, would give Willson deeds for the lands, binding Poage and his heirs to warrant the lands in the plats contained, against all persons whatever. And Willson, covenanted that he would pay Poage 20 dollars 50 cents for every thousand acres of land, so located, surveyed, delivered and warranted ; one third of the sum at the expiration of six months, one third, eighteen months, and the other third, two years after the delivery of the plat or plats at the land office.
    After this contract was made, Wilson put other land warrants into Poage’s hands, to the amount of 100,000 acres, to be by him located and surveyed, for and in the name of Willson, and to be conveyed by Poage to him with general warranty, upon the same terms stipulated in the covenant of December 1794, as to the 50,000 acres therein mentioned. The evidence of the contract as to the additional 100,000 acres, was a letter from Willson to Poage on the subject, dated the 2d January 1795, wherein, referring to the covenant of December 1794, he said, “The contract we have made, is to regulate the whole of our business.”
    *In 1820, Poage exhibited a bill against Willson in the superiour court of chancery of Clarksburg, setting- forth the covenant of December 1794, and the other contract of January 1795, and alleging a full performance of both contracts on his part; that he had located for and in the name of Willson, and surveyed, the full quantity of 150,000 acres of land, and delivered plats and certificates of the surveys at the land office; and had made deeds for the lands to Willson, with general warranty, though the plats and certificates of survey of the 50,000 acres mentioned in the contract of December 1794, were not delivered at the land office within the time thereby stipulated: that Willson had paid him 1025 dollars [which was the full compensation for the location &c. of 50,000 acres, at 20 dollars SO cents per thousand] and had, at several times, between the date of the service and September 1803, made him several payments, on account of the lands located by him, amounting' to 685 dollars; and the balance was still due: that Willson, in 1811, and again as late as 1814, acknowledged the debt, asked indulgence, and promised to adjust and pay the balance; Poage being, at the dates of these acknowledgments and promises, and ever since a resident of the state of Kentucky: but Willson now refused, on various pretenses to settle the account of the balance, and to pay the same. The bill prayed an account of the moneys due Poage on the whole transaction, and a decree for the balance that should be due, and general relief.
    Willson did not, in any form, object to the jurisdiction of the court, or rely on the statute of limitations in his defence. He put in an answer, acknowledging the contracts set out in the bill, and Poage’s performance thereof on his part, as stated in the bill; and alleging, that Poage had received very nearly if not quite the whole amount of the compensation stipulated to be paid him, partlj' from Willson, and partly from Henry Lee, with whom Willson was jointly concerned in the location of the lands; in short, resting his defence on the merits.
    Stanard, for appellant; Johnson, for ap-pellee.
    *The chancellor doubted the jurisdiction of the court; but, reserving that point for future consideration, he directed an account, which was reported, and shewed a large balance due Willson. On the final hearing, the chancellor said the plaintiff had a plain remedy at law, which there was nothing to obstruct or to embarrass; there was, no defect of proof; no discovery necessary; not a single feature to give the court of chancery even the colour of jurisdiction; and on that ground (though he was also inclined to discountenance the claim upon the merits) he dismissed the bill with costs.
    Poage appealed to this court.
    
      
      Equity Jurisdiction -Account. — £n discussing- the jurisdiction of courts of equity in matters of account, Petty v. Fogle, 16 W. Va. 513, and Yates v. Stuart, 39 W. Va. 129, 19 S. E. Rep. 425. cite the principal case. For further information on this subject, see cases and notes cited in foot-note to Hickman v. Stout, 2 Leigh 7; foot-note to Watkins v. Young, 31 Gratt. 85; foot-note to Tyler v. Nelson, 14 Gratt. 214; monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   BROOKE, P.

The contracts on which this suit is founded, are certainly not susceptible of any correct construction, by which the parties can be considered as vendor and vendee of land. . The^'warranty relied on as giving that character to them, purports nothing more than an obligation on the part of Poage, to locate the land warrants furnished by Willson, on unappropriated and vacant lands. They are-nothing but contracts for services to be rendered on the one part, and paid for on the other, at a stipulated rate, on which a suit at law was the plain and obvious remedy. The circumstance, that Poage had broken the covenants in the sealed contract, by failing to deliver the surveys within the stipulated time, in consequence of which he could not enforce it at law, does not obviate the objection to his* coming into equity; because it appears by his bill, that that contract was satisfied by the payment, made by Willson, and the only claim he had, if any, was on the second contract for the location, survey &c. of the 100,000 acres; and this might have been enforced at law, if any thing was due on it, by an action of assumpsit upon the express promise of Willson to pay the stipulated compensation of 20 dollars SO cents per thousand acres, fon the location, survey áte. thereof. The decree is to be affirmed.  