PARDEE, Circuit Judge.
This case has been once before the supreme court of the United States, and is reported in 145 U. S. 522, 12 Sup. Ct. 930. That report contains a full statement, of the general merits and pleadings in the case. In the supreme court, two questions were presented — First, whether the plaintiff below acquired any assignable interest in the real property described in the contract upon which the action was brought; and, second, assuming that he had an assignable interest, whether the rule for the measure of damages for breach of the contract for such interest by the defendant was correctly stated to the jury by the court. The first question was discussed, but not decided. The court, however, intimated “that if a right to purchase land, for however short a period, is vested in one, it is a. valuable right, and is in that sense property, and, in the absence of express prohibition, would be therefore assignable.” The case was reversed and remanded because of error in the charge of the trial court as to the measure of damages. On the second trial, there was another verdict for the plaintiff in the court below, and the case is brought here for review on several assignments of error, which will be considered in order.
The first assignment of error relates to permitting the plaintiff to offer in evidence and read to the jury, over defendant’s objection, certain telegrams from one O. K. Westcott to one 0. Baecarisse in regard to executing the contract between plaintiff and defendant, sued on; and the second assignment of error complains of the charge to the jury, as follows:
“If, from consideration of the evidence, you conclude that Baecarisse had authority, direct from the defendant, to execute the contract in his behalf, then it would be binding upon the defendant. It would also, be binding upon the defendant if Westcott, with authority from, and knowledge and consent of, defendant, empowered Baecarisse to execute it. If you find from the evidence that Baecarisse had authority from the defendant, or from Westcott, with the defendant’s assent, approval, and knowledge, to contract with individuals generally for the purpose of procuring lands under the act of the legislature of 1879, by filing upon them and having the same surveyed, then you are instructed that the acts Of Baecarisse were binding upon the defendant, as such acts came within the scope of his authority, and defendant cannot avoid liability thus created.”
The contract sued on purported to have been executed on the part of the plaintiff in error by one C. Baecarisse, agent. The amended answer denies the authority of C. Baecarisse as agent, but impliedly admits the agency of O. K. Westcott; so that the question of agency [234]*234was substantially raised by tbe pleadings, and tbe evidence tending to support or disprove tbe agency of either Baccarisse or Westcott could work no surprise. Tbe bib of exceptions taken to tbe admission of tbe evidence complained of, and to tbe charge of tbe trial court in relation to such evidence, contains no statement of tbe facts otherwise proved, or attempted to be proved, in relation to agency, so as to enable this court to determine whether tbe evidence objected to was or was not admissible, or whether the charge of the court was relevant. Tbe objection assigned to tbe admission of tbe evidence and to tbe charge of tbe court is that tbe plaintiff did not allege in bis pleadings that Westcott was tbe defendant’s agent, or that tbe said Westcott was authorized to empower tbe said Bac-carisse to make tbe contract sued on. As we have seen, tbe question of agency was raised by tbe pleadings, so far as to fully inform each party that tbe lawful agency of both Baccarisse and Westcott would be an issue in tbe case. Tbe charge of tbe court implies that evidence bad been offered tending to show that Westcott bad authority as agent of tbe plaintiff in error to empower Baccarisse, and that there was also evidence tending to show that Baccarisse bad authority direct from tbe plaintiff in error himself. In either case, tbe evidence objected to was admissible, and tbe charge complained of was- proper. As tbe case is presented to us under tbe bill of exceptions, however, we are unable to determine tbe admissibility of tbe one, or tbe propriety of tbe other.
The, third assignment of error is the refusal of tbe trial court to charge tbe jury as follows:
“The court instructs the jury that the ‘right, title, and interest’ 'of plaintiff, in his application and files on lands, and which he contracted to sell, was not a vested right on the 1st day of November, 1882, in or to any lands surveyed after that date. The acceptance By the surveyor of the plaintiff’s application for land invested plaintiff with no right that he could sell, and for such sections of land surveyed after said November 1, 1882, you will not consider, or include in the measure of damages.”
The evidence relating to this matter shows that tbe plaintiff bad rhadé application, in two instruments of writing, for tbe survey of 1,818 sections of land described in bis petition, which was addressed to, and tbe applications bled by, tbe county surveyor of El Paso county, on October 4 and 5, 1882, respectively. It; shows, also, that tbe surveys of said land, for which said Buss bad made application, were made at and prior to tbe time of tbe execution of tbe contract sued on, saving and excepting 98 sections, of 640 acres each,, surveys of which were made between November 1 and November 9, 1882. These surveys were filed in tbe general land office on tbe 8th day of January, 1883. Tbe instrument executed between tbe plaintiff and tbe defendant November 1, 1882, was an executory contract, by which tbe plaintiff, for and in consideration of a sum of money promised to be paid by tbe defendant, "agreed on tbe 15th day of November, 1882, to transfer and assign to defendant all bis right, title, and interest in and to tbe land in question, acquired by virtue of plaintiff’s application. This contract was a Valid and binding contract, at tbe time it was entered into, unless it was prohibited by law or public policy, which is not con[235]*235tended. Under this state of the law and of the evidence, the instruction asked for did not present the law of the case, and, if technically correct, as a general proposition, was calculated to mislead, and was therefore properly refused. The actual charge of the court, given in this regard, is as follows:
“You aro further instructed that the right to purchase 1ho lands mentioned, which right the plaintiff acquired by virtue of his applications, as set forth in the contract and shown by the evidence, was a valuable right, and one which could be lawfully assigned.”
And it seems to have correctly presented the law of the case.
The fourth assignment of error complains' of the refusal of the trial court to charge the jury as follows:
“You are instructed that the law required the field notes of the land to be returned to and filed in the general land office within sixty days after the same was surveyed. The evidence shows that the field notes of only twenty-four sections of land were returned to and filed in the general land office within said sixty days. Therefore, tiie court charges you that you can only consider plaintiff’s right in twenty-four sections of land.”
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PARDEE, Circuit Judge.
This case has been once before the supreme court of the United States, and is reported in 145 U. S. 522, 12 Sup. Ct. 930. That report contains a full statement, of the general merits and pleadings in the case. In the supreme court, two questions were presented — First, whether the plaintiff below acquired any assignable interest in the real property described in the contract upon which the action was brought; and, second, assuming that he had an assignable interest, whether the rule for the measure of damages for breach of the contract for such interest by the defendant was correctly stated to the jury by the court. The first question was discussed, but not decided. The court, however, intimated “that if a right to purchase land, for however short a period, is vested in one, it is a. valuable right, and is in that sense property, and, in the absence of express prohibition, would be therefore assignable.” The case was reversed and remanded because of error in the charge of the trial court as to the measure of damages. On the second trial, there was another verdict for the plaintiff in the court below, and the case is brought here for review on several assignments of error, which will be considered in order.
The first assignment of error relates to permitting the plaintiff to offer in evidence and read to the jury, over defendant’s objection, certain telegrams from one O. K. Westcott to one 0. Baecarisse in regard to executing the contract between plaintiff and defendant, sued on; and the second assignment of error complains of the charge to the jury, as follows:
“If, from consideration of the evidence, you conclude that Baecarisse had authority, direct from the defendant, to execute the contract in his behalf, then it would be binding upon the defendant. It would also, be binding upon the defendant if Westcott, with authority from, and knowledge and consent of, defendant, empowered Baecarisse to execute it. If you find from the evidence that Baecarisse had authority from the defendant, or from Westcott, with the defendant’s assent, approval, and knowledge, to contract with individuals generally for the purpose of procuring lands under the act of the legislature of 1879, by filing upon them and having the same surveyed, then you are instructed that the acts Of Baecarisse were binding upon the defendant, as such acts came within the scope of his authority, and defendant cannot avoid liability thus created.”
The contract sued on purported to have been executed on the part of the plaintiff in error by one C. Baecarisse, agent. The amended answer denies the authority of C. Baecarisse as agent, but impliedly admits the agency of O. K. Westcott; so that the question of agency [234]*234was substantially raised by tbe pleadings, and tbe evidence tending to support or disprove tbe agency of either Baccarisse or Westcott could work no surprise. Tbe bib of exceptions taken to tbe admission of tbe evidence complained of, and to tbe charge of tbe trial court in relation to such evidence, contains no statement of tbe facts otherwise proved, or attempted to be proved, in relation to agency, so as to enable this court to determine whether tbe evidence objected to was or was not admissible, or whether the charge of the court was relevant. Tbe objection assigned to tbe admission of tbe evidence and to tbe charge of tbe court is that tbe plaintiff did not allege in bis pleadings that Westcott was tbe defendant’s agent, or that tbe said Westcott was authorized to empower tbe said Bac-carisse to make tbe contract sued on. As we have seen, tbe question of agency was raised by tbe pleadings, so far as to fully inform each party that tbe lawful agency of both Baccarisse and Westcott would be an issue in tbe case. Tbe charge of tbe court implies that evidence bad been offered tending to show that Westcott bad authority as agent of tbe plaintiff in error to empower Baccarisse, and that there was also evidence tending to show that Baccarisse bad authority direct from tbe plaintiff in error himself. In either case, tbe evidence objected to was admissible, and tbe charge complained of was- proper. As tbe case is presented to us under tbe bill of exceptions, however, we are unable to determine tbe admissibility of tbe one, or tbe propriety of tbe other.
The, third assignment of error is the refusal of tbe trial court to charge tbe jury as follows:
“The court instructs the jury that the ‘right, title, and interest’ 'of plaintiff, in his application and files on lands, and which he contracted to sell, was not a vested right on the 1st day of November, 1882, in or to any lands surveyed after that date. The acceptance By the surveyor of the plaintiff’s application for land invested plaintiff with no right that he could sell, and for such sections of land surveyed after said November 1, 1882, you will not consider, or include in the measure of damages.”
The evidence relating to this matter shows that tbe plaintiff bad rhadé application, in two instruments of writing, for tbe survey of 1,818 sections of land described in bis petition, which was addressed to, and tbe applications bled by, tbe county surveyor of El Paso county, on October 4 and 5, 1882, respectively. It; shows, also, that tbe surveys of said land, for which said Buss bad made application, were made at and prior to tbe time of tbe execution of tbe contract sued on, saving and excepting 98 sections, of 640 acres each,, surveys of which were made between November 1 and November 9, 1882. These surveys were filed in tbe general land office on tbe 8th day of January, 1883. Tbe instrument executed between tbe plaintiff and tbe defendant November 1, 1882, was an executory contract, by which tbe plaintiff, for and in consideration of a sum of money promised to be paid by tbe defendant, "agreed on tbe 15th day of November, 1882, to transfer and assign to defendant all bis right, title, and interest in and to tbe land in question, acquired by virtue of plaintiff’s application. This contract was a Valid and binding contract, at tbe time it was entered into, unless it was prohibited by law or public policy, which is not con[235]*235tended. Under this state of the law and of the evidence, the instruction asked for did not present the law of the case, and, if technically correct, as a general proposition, was calculated to mislead, and was therefore properly refused. The actual charge of the court, given in this regard, is as follows:
“You aro further instructed that the right to purchase 1ho lands mentioned, which right the plaintiff acquired by virtue of his applications, as set forth in the contract and shown by the evidence, was a valuable right, and one which could be lawfully assigned.”
And it seems to have correctly presented the law of the case.
The fourth assignment of error complains' of the refusal of the trial court to charge the jury as follows:
“You are instructed that the law required the field notes of the land to be returned to and filed in the general land office within sixty days after the same was surveyed. The evidence shows that the field notes of only twenty-four sections of land were returned to and filed in the general land office within said sixty days. Therefore, tiie court charges you that you can only consider plaintiff’s right in twenty-four sections of land.”
This assignment, relating, to the filing in the general land office of the surveys made under the application of the plaintiff in the court below, may he disposed of with the fifth assignment of error, which relates to a question as to whether the surveys made under the plaintiff’s application, and returned to and filed in the general land office, were actual surveys on the ground, or were “chimney-corner” or office surveys. In the view that we take of the case, it is wholly immaterial whether the surveys made under the application of the plaintiff, and returned to the general land office, were made and returned within 60 days after the date of the survey, or were returned at all, and also whether the surveys made under the said application were actually made on the ground, or were office surveys. .
With regard to the return of the surveys to the general land office, with the field notes, within 60 days after the date of the survey, a reference to the law will show that the duty of making such return devolved, not upon the applicant, but upon the surveyor, and that the failure to make such return within the time, on the part of the surveyor, is not a reason for forfeiture, under the terms of the act. The ninth section of the act is the only section of the same which provides for the forfeiture of the rights secured by the application, and that provision is that should any applicant for the purchase of public land fail, refuse, or neglect to pay for the same, at the rate of 50 cents per acre, within the time prescribed in section 5 of the act, he shall forfeit all rights thereto, and he shall not be allowed, thereafter, to purchase the same. But, be this as it may, the contract sued on is an agreement to transfer from Russ to Telfener, all and singular, the rights, title, and interest that the said Russ now has or ma.y be entitled to in and to said lands, by reason of the application theretofore made by him to purchase the same. There was no agreement whatever tha.t any actual surveys hadibeen made under such application, or that, if such actual surveys had been made, he (Russ) would cause them to be returned [236]*236and filed in tlie general land office at any time, or in any manner whatever. The contract made the same day between the same parties provided that Russ, at his own proper cost and expense, should make all the surveys, field notes, and maps of the said lands, and file them in the office of the surveyor of El Paso county, and in the general land office of the city of Austin, Tex., in the manner and within the time required by the provisions of said law, but this only in case the sale and transfer should be made under the contract first mentioned at the time agreed on, to wit, November 15, 1882.
As it is conceded that Telfener made default under th© first-mentioned contract on the 15th of November, 1882, and that the sale and transfer under said contract was never carried out, the second-mentioned contract became wholly inoperative' and irrelevant; and the rights of the plaintiff became fixed, definite, and certain, on the 15th of November, 1882, at the time defendant, Telfener, made default. Under these circumstances, we fail to perceive any obligation resting upon Russ to either complete the surveys, or file the same in the general land office. Whatever was done by Russ after the 15th of November to perfect the surveys and file tlie same was done at his own cost and at his own risk, and could in no wise affect the plaintiff in error, Telfener, because the rule for damages in the case was, as declared by the supreme court in Telfener v. Russ, supra, as follows:
“On the 15th of November, he [Russ] possessed all the right to the land which he ever possessed, and, assuming that the defendant then failed to make the payment which he had agreed to make, all the damage suffered by the plaintiff was the difference between the value of the right, as simulated to be paid, and the amount which could then have been obtained on its sale.”
The sixth assignment of error is that the court erred in overruling the defendant’s motion for a new trial, and in not setting aside the verdict rendered and granting a new trial. It is well settled that a refusal to grant a new trial cannot be assigned as error. On the record, as presented to us, we find no reversible error, and therefore we are compelled to affirm the judgment.