was there any contract that would have been enforceable, even were it not for the statute of frauds. It was not enough, then, for these parties thereafter to reduce to writing further evidence of a previous contract, but it became necessary for them to reach an agreement as to those terms left unsettled in their former dealings; and such agreement must not only be evidenced by proper writings, but it must be binding upon both parties-a mere offer by one party, with no acceptance by the other, could be of no binding force. The deed and the letters of October 6th and October 8th contained terms as to payments radically different from the claimed oral agreement. Were these proposed terms ever accepted? Defendant was in no manner bound to make plaintiff any offers, and, even if such offers had been evidenced by letters, properly signed, and sent direct to plaintiff, defendant had the absolute right to call the deal off at any time before plaintiff bound himself by accepting defendant's offers. Plaintiff could have accepted the offer made by defendant, evidenced by the deed and several letters, by accepting the deed (Halsell v. Renfrow, 202 U. S. 287, 26 Sup. Ct. 610, 50 L. Ed. 1032), or by otherwise communicating such acceptance to defendant before the recall of the deed. Plaintiff calls attention to the fact that, in his letter of October 7th, in addition to what we have hereinbefore quoted, he asked for the abstracts of title to be forwarded, and he claims. that by so doing he accepted the terms contained in the deed and letter of October 6th. In view of the remainder of his letter, he never bound himself, so that defendant could have enforced such terms, if defendant were suing. Furthermore, as hereinafter noted, the court did not find that the terms contained in the letter of October 6th were accepted, but that those in the letter of October 8th were accepted, as evidenced by the fact that he finds. that the plaintiff was to have 10 years within which to make the deferred payments. Suppose, instead of defendant's recalling the deed, he had brought an action to enforce the contract, what could the court have decreed in his favor? Section 2340, Rev Civ. Code, provides: "Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance." All that we have said above is based upon the proposition that the evidence, oral and written, was properly received and considered. The trial court found that there was a written contract, and that under its terms plaintiff was to have not to exceed 10 years in which to make the deferred payments. As before noted, the evidence does not support such a finding. The trial court found that it was agreed that the papers were to be sent to the bank, and the deal was to be consummated there. Under the undisputed evidence, the papers were sent to the bank, as defendant's agent, and there never was a time, so far as any evidence shows, when defendant did not have full right to recall the papers and require the deal to be closed direct with him. The trial court absolutely disregards and makes no finding upon one material part of the contract, namely, the payment for the plowing. That plaintiff was to pay for the plowing was an express condition insisted upon by defendant, and had to be complied with by plaintiff before he could demand deed. Plaintiff's evidence as to any oral agreement concerning the plowing was improperly admitted, being incompetent for any purpose. Whether the undelivered deed and the letter written by the stenographer-or rather bookkeeperwere admissible in evidence would seem, under the authorities, very uncertain. Halsell v. Renfrow, supra, and notes in 50 L. Ed. 1033; notes, pp. 404-407 of 3 Ann. Cas.; Hickox v. Bacon, supra; Thomas v. Rogers, supra. We do not deem it best to pass upon this question at this time. It is, however, perfectly clear that the letters written by the attorneys were improperly received in evidence. There was no writing, signed by defendant, in any manner referring to such letters; in fact, no evidence, competent under the statute of frauds, showing that defendant ever became bound by the contents thereof. It is clear that the judgment of the trial court was erroneous, and, further, that the plaintiff could not recover upon a new trial. The judgment of the trial court is reversed, and it is directed to enter a judgment, dismissing the complaint herein. FISH & HUNTER CO. et al. v. NEW ENGLAND HOME STAKE MINING CO. et al. Under Rev. St. U. S. § 2234 (U. S. Comp. St. 1901, p. 1435), authorizing the Surveyor General to appoint surveyors to survey mining claims, and providing that the expenses of surveys shall be paid by the applicants, and authorizing the Commissioner of the General Land Office to establish maximum charges for surveys, and the rules of the Interior Department, the employment, manner, and amount of payment for the survey of mining claims, are subjects of private contract between an applicant and a deputy surveyor, and the surveyor's fees may be paid in any commodity agreed on; but, where an applicant and a deputy surveyor have made an arrangement as to payment, the surveyor must make the survey and return correct field notes without delay, notwithstanding any dispute over the payment of fees. McCoy, P. J., and Corson, J., dissenting. (Opinion field, February 14, 1912.) On petition for rehearing. Denied. For former opinion, see 27 S. D. 221, 130 N. W. 841. SMITH, J. This case is before us on rehearing. It will be found reported in 27 S. D. 221, 130 N. W. 841. A careful reexamination of the case satisfies us that our former decision is correct. One matter referred to in the petition for rehearing, however, was not fully reviewed in the opinion of the court. A consideration of this question does not render necessary a restatement of the facts, which are fully set forth in the former opinion. The statutes of the United States authorize the Interior Department to make rules and regulations for obtaining title to mineral lands. Under these rules and regulations, it is required that an application be made to the United States Surveyor General for survey of mining claims for an official survey of the property, together with an estimate of the amount required to defray the expenses of platting and other work required, in the Surveyor General's office, that the applicant may make a proper deposit thereof in the office, and that "thereupon you will cause the survey to be made by [naming the surveyor], United States deputy mineral surveyor." Upon the completion of the survey, the applicant is required to present to the register and receiver of the United * * * * * * *" States Land Office a sworn statement or application, to the effect that he has become the owner of the land "described in the field notes of the survey hereof, hereto attached. In connection with this application must be filed an affidavit that in the prosecution thereof the applicant "has paid out the following amounts, viz. To the credit of the Surveyor General's office $; for surveying $," etc. United States Statutes, § 2334 (U. S. Comp. St. 1901, p. 1435), is as follows: "The Surveyor General may appoint in each land district containing mineral lands, as many competent surveyors as shall apply for appointment, to survey mining claims. The expenses of the survey of the vein, lode or claim * shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveying and to the end that the commissioner may be fully informed on the subject, each applicant shall file with the register, a sworn statement of all charges and fees paid by such applicant for publication and survey which statement shall be transmitted with the other papers in the case, to the Commissioner of the General Land Office." The substance of this section, and its purpose and intent, are condensed into and expressed in section 90 of the United States Mining Laws and Regulations, approved December 18, 1903. "The Surveyors General of the several districts will in pursuance of said law appoint in each land district, as many competent surveyors for the survey of mining claims as may seek such appointment, it being distinctly understood that all expenses of these notices and survey are to be borne by the mining claimant and not by the United States." Section 126 of these regulations is as follows: "No return by a mineral surveyor will be recognized as official unless it is over his signature as a United States deputy mineral surveyor, and made in pursuance of a special order from the Surveyor General's office. After he has received an order for the survey he is required to make the survey and return correct field notes thereof, to the Surveyor General's office without delay." * veyor. Section 127, Regulations, etc., provides: "The claimant is required in all cases to make satisfactory arrangements with the surveyor for the payment for his services and those of his assistants, in making the survey, as the United States will not be held responsible for the same." Respondent now contends that Godfrey, as owner of the claims, having made application for the appointment. of Peck as surveyor, and the Surveyor General having appointed him to survey the claims, an obligation was created by the laws of the United States, and an implied promise was raised that Godfrey would pay Peck for the survey. Section 127 of the rules and regulations above quoted is an authoritative interpretation of section 2334, U. S. Statutes, and neither the statute nor the rule purports or intends to create any contractual relation, either express or implied, between the claimant and the deputy mineral surOne thing is made entirely clear; and that is that the United States government cannot be required or obligated to pay for the survey, even though made by one of its own officers, namely, a United States deputy mineral surveyor. There is nothing in the statutes or the rules, so far as we know, which requires any deputy surveyor to make a survey or enter into a contract with an applicant for a survey, except upon terms and conditions which are satisfactory to himself and the claimants. The department is authorized to fix the maximum fees for the survey, but nothing in the statute or the rules and regulations requires any deputy surveyor to accept even the maximum fees and to make a survey as a public or official duty upon the request of an applicant therefor. The matter of employment, and the manner and amount of payment of the surveyor, are left wholly to the choice. and free will of the applicant and the deputy. Any deputy surveyor within the district may be selected by the applicant, and any arrangement or agreement whatever, which is satisfactory to them, may be made as to payment for such services. In the language of section 127, "the claimant is required in all cases to make satisfactory arrangements with the surveyor for the payment for his services." Nothing further is required. The amount, the time, and manner and mode of payment may be such as is satisfactory to them. The deputy may accept anything of value satis |