
    W. F. Ervin vs. Isaac Epps.
    
      Worlc and Labor — Surveyor—Commissioners in Partition.
    
    
      Semite, That the fees of a surveyor retained to survey lauds for commissioners in partition sliould He taxed as costs in tlie cause, and that he cannot charge one of the heirs or joint owner’s of the lands for his services, although such joint owner may have been active in procuring his services.
    Commissioners in partition are entitled to reasonable compensation for their services, and should not, it seems, employ one of their' own number as surveyor, and thus enable him to charge in that capacity also.
    A separate plat for each heir, of the parcel allotted to him, should not be made and returned into Court.
    In an action for work and labor, it is a good defence to show that the work was so unskilfully, carelessly or wrongly done that the employer suffered injury thereby, or that it was useless and had to be done over again.
    A surveyor employed by commissioners in partition owned adjoining lands, and, in running the line between his own and the lands to be partitioned, a dispute arose as to the location: Held, that the surveyor when the dispute arose became interested, and could no longer act, and that charges for services afterwards rendered could not be allowed.
    
      BEFORE LLOVER, L, AT WILLIAMSBURG, FALL TERM, 1867.
    The report of bis Honor, the presiding Judge, is as follows:
    
      “ The plaintiff sued in the process jurisdiction to recover for services rendered as a deputy surveyor. He was appointed, with others, a commissioner to make partition of > the real estate of Epps, and was requested by the defendant to make the necessary survey and plats. ' Plaintiff stated that he was employed five days (the number charged) in the work as a surveyor, and made one plat embracing all the land, and designating on it the share of each heir. The . defendant also requested him to make separate plats for each, if it was customary, which he did. I gave a decree for his account, except a charge for each representation on the general plat.
    •“ William Epps, one of the heirs, stated that while the survey was in progress, the plaintiff indicated a spot as the corner, common to the Epps land and his, whereas, the witness insisted that the original corner was about fifteen steps distant, and on the land then claimed by plaintiff, and that a part of the corner had been removed and the line trees had been cut. This the plaintiff denied; and I presume that it was in reference to this evidence that the defendant, in his second ground of appeal, charges the plaintiff with dereliction of duty. Whether the plaintiff failed in bis duty, involved the true position of the -corner and the correct location of the land, and in this incidental way, I would not undertake to decide these questions.”
    The brief contained a copy of the bill of particulars and statement, as follows:
    
      Bill of Particulars.
    “ Isaac Epps,
    1866. To W. E. Ervin, Dr.
    17th September — To five days’ employment in surveying at $3 per day, .... $15 00
    To one cent per acre, for 992 acres, . 9 92
    To a plat for commissioners’ office, with seven representations, making eight representations, at $2.14 each, . . . 17 12
    To making seven plats for seven heirs, at $2.14,.14 98
    $57 02
    
      “ Writ of partition issued by commissioner to divide the land of the estate of Epps, on the 1st September, 1866, directed, in the usual manner, to Wm. E. Ervin, W. EL Lane, H. W. Eerrill, and B. E. Scott, as commissioners, and in the usual form authorizing them to call in the services of a surveyor, if necessary.
    
      “ Beturn to writ, made on the 17th September, 1866, in the handivriting of Wm. E. Ervin, and signed by him and the other commissioners.
    "Large plat in commissioners’ office, made by W. E. Ervin, says: 'Pursuant to a writ of partition and division to commissioners directed, I (by their direction) have resurveyed and laid out,’ &e., &c,, dated September 17,1866.
    
      “ Original survey made several years ago, of same land, by W. E. Ervin, corner then put where defendant now contends it ought to be, adjoining lands now owned by Ervin, then owned by others. By survey then, Epps’ land contained 1,008 acres — now only 992 — loss, 16 acres. Beturn of commissioners not yet confirmed, owing to this' difficulty. Division to be made over, de novo.”
    
    
      The defendant appealed on tbe grounds:
    1. Because, it is respectfully submitted that bis Honor erred in holding that a party who bad been appointed, and had acted as a commissioner in dividing real estate under a writ of partition from tbe Court of equity, could also act as tbe surveyor whom the commissioners were authorized to employ, and charge according to tbe fee-bill for bis services.
    2. Because, that when a party undertakes to perforin a work of skill and labor, and fails in the object, and bis employer receives no benefit whatever from the work, but, on the contrary, positive disadvantage and injury, thus requiring the work to be done over, de novo, the said party is entitled to no compensation whatever.
    8. Because the plaintiff was allowed to charge three dollars per diem for five days’ service, which included as well the days employed in making the plats and executing the writ of partition, as those employed in actually making the survey.
    4. Because the said plaintiff was allowed to charge two dollars and fourteen cents for each of seven plats made, one for each of the heirs; while it is submitted that if even it be held that be was entitled to any compensation at all, he could only charge for one plat, which accompanied the return of the commissioners.
    
      Maurice, for the motion,
    cited:
    A. A. 1733, 3 Stat. p. 343; Note at p. 765, vol. 4, Stat.; A. A. 1791, 5 Stat. 158 and 161; Slurzenegger vs. Marsh, 1 Bail. 592, 1 McM. 73; Comyn on Con. 239 and 240; 
      Duncan vs. Blundell, 3 Stark, 6; 1 Campb. 38; 1 Cheves’ Oh. Ca. 129; Snow vs. Callum, 1 Des. 542; 2 Bay, 101; McNeil vs. Morrow, Rich. Eq. Ca. 172; Barr vs.-Farr, 1 Hill Ch. 387; Robinson vs. Rett, 2 Lead. Ca. in Eq. by Hare & Wallace, p. 206, and the cases therein cited.
    
      Pressley, contra.
   The opinion of the Court was delivered by

iNGLis, A. J.

The services for which the plaintiff seeks in this action to recover from the defendant appear, from the report before the Court, to have been rendered, if at all, in his capacity of deputy surveyor, while retained as such in the execution of a commission issued in a proceeding at law or in equity for the partition of the real estate of Epps. It occurred to this Court, upon the presentation of the case, as unusual and needing explanation, that for services so rendered a claim should be preferred by suit against an individual party. Commissioners appointed to make partition of land are required to “ return a general plat of the said lands, with a certificate thereon in writing,” describing the manner in which they have made” the partition, &c., and “ may, if they think necessary, call in to their aid one or more surveyors to run the lines of the said lands and also the division lines thereof.” (A. A. 1791, 5 Stat. 163; A. A. 1786, 4 Stat. 742; Witherspoon et al. vs. Dunlap, 1 McC. 546.) It would seem proper that whatever charges the plaintiff is entitled to make, under such circumstances, should have been taxed as part of the costs of the cause ; and it is not seen how there is a personal liability upon this defendant to make compensation for such services. The mere fact that he, or any one of the coparceners, made himself active in requesting the plaintiff to do the service, would not seem sufficient to make him personally responsible for that which would be a proper charge as costs in the cause. No such question has, however, been made, and the case must be disposed of on other grounds.

■ The plaintiff was also one of the commissioners'to whom the writ of partition was directed, and, as such, was, with his associates, acting in the execution of the commission, entitled to reasonable compensation for time and labor to be taxed, with the other "expenses incurred in making” the partition, as costs in the cause. The evidence in the case, as reported, does not make it satisfactorily clear that the first charge in the bill of particulars does not cover time spent and services rendered in his capacity of commissioner merely, as distinct from that of surveyor, and still less that time consumed in making the plats was not so covered, and thus a double or triple charge made for the same day’s work. The plaintiff’s own land adjoins the land to be surveyed ; the latter was, therefore, convenient of access to him; it had been already surveyed by him, and he was, therefore, familiar with the lines; and the whole area to be surveyed did not exceed one thousand acres. In such circumstances it seems doubtful at least whether five days could have been consumed in the mere fieldwork. The confusion which may easily thus arise to the injury of the parties, from combining in one person the distinct offices of commissioner and surveyor, constrains this Court to doubt the propriety of such combination, and while it cannot be said that it is unlawful, it may, with great confidence, be declared highly inexpedient.

There is nothing in the law prescribing the duties of commissioners in partition, which requires them to have made and to return into Court, distinct plats of the separated parcels of land allotted to the different dis-tributees. The last charge in the bill of particulars could not properly, therefore, be taxed as costs, in the partition cause. If the defendant is liable, it can only be on the ground of bis promise, express or implied. But tbe proof is no more than that defendant requested tbe plaintiff to make separate plats for the heirs severally, “if it was customary.” This either referred to the duty of the commissioner acting under the authority of the Court, and meant if it was, under the law, a part of that duty, (which seems the most reasonable construction,) or, if a more liberal interpretation is adopted, it referred to the usage of surveyors in such cases, and in either view, it was an appeal to the professional knowledge of the plaintiff. There ought to have been evidence that it was customary, in whatever sense the Court thought was the true one, but here there is none to satisfy even that construction, which is most favorable to the plaintiff. '

■ The proposition stated in the appellant’s second ground is substantially correct. When one charges for work done at another’s request, and-the work is proved to have been so unskilfully, carelessly, or wrongly done, that the employer does by the. workman’s fault suffer injury, rather than realize the expected benefits, or so that, the labor proving wholly useless, the expense must be incurred a second time, this is, according to the circumstances, good •grounds for an abatement or in bar of the workman’s demand. The plaintiff was, at the time of the survey, owner of the land adjoining the land which he was surveying. While running the dividing line between these contiguous tracts, a controversy arose between the plaintiff and the heirs of Epps, as to the proper location of a corner thereon, the latter insisting that it was some fifteen steps distant from the spot at which the plaintiff located it. The plaintiff persisted, and made his survey and plat in conformity with his own claim, in opposition to the claim and interests of those he was serving, and whose interests he as an officer of the Court was bound impartially to protect. So soon as this conflict of interests was discovered, the plaintiff became incompetent for bis work, and should have instantly withdrawn, or on bis failure to do so, should have been discharged by the commissioners. A plat so made and returned into Court, if it is acquiesced in, and partition is made and confirmed accordingly, must, it will be readily seen, be a very strong and controlling piece of evidence in any future controversy between the plaintiff and the dis-tributee to whom the particular part of the land so involved in dispute should be assigned. The heirs of Epps are reduced to the dilemma of either submitting to a spoliation pro tanto of what they believe to be their patrimony, or of throwing away the plaintiff’s work, and incurring the expense of a new survey. It may be that the merits of the controversy between the plaintiff and the Epps heirs, as to the location of this disputed corner cannot be investigated, and the right determined in this incidental way, especially on the trial of an action in the summary process jurisdiction of the Court. But the fact of the controversy, and the existence of probable ground therefor, (as is alleged to be susceptible of easy proof here,) appearing, as its existence was indisputable cause for the discontinuance, at that point, of the plaintiff's services, would be good ground for disallowing all charges for services subsequently rendered. To show the occurrence of this controversy and the probable cause therefor on the Epps side, testimony ought to have been admitted.

It is the opinion of the Court that the defendant is entitled to a new trial, and it is so ordered.

Motion granted.

DüNKiN, C. J., and Waudlaw, A. •!., concurred.

Motion granted.  