Colson v. Thompson

APPEAL from a decree of the circuit court for the district of Kentucky. The appellee filed his bill in that court, stating that, in the year 1779, a number of persons amongst whom was the defendant below, who is the appellant in this court, employed him, the complainant, to locate lands for them, in the then district of Kentucky; that he received from the defendant certain land warrants to the amount of 25,000 acres, which he located for him on the 20th of May, 1780. That the terms on which he was to do the business were, that the owner of the warrants should furnish all the money that should be necessary for locating and surveying the said lands. That the complainant should direct the doing thereof, and receive, for his compensation, what should be given to other persons for similar services. The bill then avers, that the usual proportion which was then generally given to locators for similar services, was one third part of the land so located by them. The complainant further alleges, that he was prevented from surveying the above entry by the Indians, who were very troublesome, and who rendered the execution of such business difficult and dangerous; that, during this time the defendant procured a survey to be executed of the entry made in his name by the complainant, and obtained a patent for the same. The bill admits that the complainant received a sum of money from the defendant, which, however, he charges as paid on account of the expenses attending the locating and surveying the said entry, and not as a compensation for his services. The prayer of the bill is, for a conveyance of one-third part of the above-mentioned tract of 25,000 acres of land. It appears by the exhibits in the cause, that the above entry was surveyed on the 28th October, 1786. The defendant states in his answer, that previously to his employing the complainant to locate and survey his warrants, he received offers from other persons to do the business upon the terms stated in the bill, which he rejected, and that he was induced to authorize his friend, Mr. Webb, to place the warrants in the complainant's hands, in consequence of his having understood that he would undertake the business for a fair compensation in money. That Mr. Peachy, the agent of the defendant, paid to the complainant upwards of 7,000 pounds of tobacco, within a few months after the entry was made. The answer farther states, that the defendant frequently applied to the complainant to have the entry, which he had caused to be made, surveyed; and that, after repeated promises to comply with these demands, made and broken, the complainant confessed it was not in his power to execute the business, and after claiming the tobacco, which he had received as a compensation for his services, advised the defendant to apply to some other person to attend to the surveying of the entry. The defendant owns, that from the year 1785, when this advice was given, until some time after he claimed his grant, he was frequently in company with the complainant, who, to the best of his recollection, never intimated that he expected to receive any part of the lands, nor was any such demand ever made by the complainant until the institution of this suit, in 1794. There was an amended bill filed in this cause, and the above answer was, by the agreement of parties, received as an answer to this bill. The amended bill states, that the entry of the 25,000 acres of land was made by the intervention of a Mr. Shelby, a particular friend of the complainant. That the defendant caused the said entry to be surveyed without consulting the complainant on the subject, although he avers, that he was always ready and willing, whenever he might have been called upon for this purpose, to show the beginning and other calls of the entry, and to give the necessary directions to the surveyor. The depositions taken in the cause prove, that at the time when the entry was made, it was usual in Kentucky for the locators of lands to receive from the owners, as a compensation for their services, a proportion of the land so located, beside the expenses which might be incurred in surveying the land, which the locator received from the owner in money. But what that proportion was, is not precisely ascertained by any of the witnesses. They state, generally, that it was sometimes one-third and sometimes one-half. Mr. Peachy, the agent and attorney in fact of the defendant below, from the year 1780, when the defendant went to the West-Indies until his return, states, that he had lands located in Kentucky, for a part of which he allowed the locator one-fifth, and for the residue one-tenth, of the land located, as a compensation for his services, beside paying the expenses of surveying, &c. This witness farther states, that he never heard or understood, in conversation with the complainant, the defendant, or Mr. Webb, with whom the defendant deposited his warrants to be delivered to the complainant, that the defendant was to give any part of the land in consideration of locating the same. The circuit court decreed, that the defendant below should convey to the complainant one third of the said tract of 25,000 acres of land, according to certain boundaries which had been previously laid down under an order of that court, from which decree the defendant appealed. Mr. Justice WASHINGTON delivered the opinion of the court.