
    Hayden v. Waymire.
    Open Mutual Account. — Where one performs services for another, at his request, and charges him with the reasonable worth of the same, and the latter expends money for and loans money to the former, at his request, and charges him therewith, the account between them is “an open mutual account,” within the meaning of subd. 3, of sec. 539, of the civil code, relating to costs.
    Appeal from Polk County.
    
      W. JEL. Holmes, for appellant.
    
      Daly & Butler, for respondent.
   By tbe Court,

Watson, O. J.

Tbe appellant sued tbe respondent, as administrator of tbe estate of Fred. Williams, deceased, in the circuit court for Polk county, and obtained a verdict for five dollars, which amount was paid into court by tbe respondent.' Tbe appellant moved for judgment for costs, in addition to tbe amount of tbe verdict, which was refused by tbe court, and judgment for costs given in favor of tbe respondent. This ruling constitutes tbe error complained of by tbe appellant. Tbe action was brought on an account for professional services as an attorney-at-law, rendered by tbe appellant to said Williams, in 'December, 1876, at bis request, and are alleged in tbe complaint to bave been reasonably worth $200. Interest was claimed thereon at 10 per cent, per annum, from tbe time they were rendered. The answer admitted tbe services, but denied that they were worth over $100, and denied tbe claim for interest altogether. It also sets up as a separate defense an agreement between. appellant and Williams, under which it alleges tbe services were performed, by tbe terms of wbicb tbe appellant was to furnish bis professional services whenever needed by said Williams, free of charge, and in return Williams was to furnish appellant, whenever be should be at Dallas, with liquors, wine and beer free of charge; and it alleges that Williams did furnish appellant with such articles, in accordance with such agreement, to tbe amount of not less than $400, and made no charge therefor against him.

As a second separate defense, tbe answer alleges that at various specified times said Williams laid out and expended money for, and made loans to tbe appellant, at bis request, amounting in tbe aggregate to tbe sum of $180, and that such sums, nor any of them, bave ever been paid, but are still due from the appellant, with interest. The new matter in the answer is put in issue by the reply.

It will be seen from this statement, beyond doubt, we think, that the apellant’s claim, and the counter-claims set up in the second defense, constituted “ an open, mutual account” between the appellant and Williams, within the meaning of subdiv. 3, of sec. 539, of the civil code, which entitles a plaintiff recovering judgment for any sum, “in an action involving an open mutual account, where it appears to the satisfaction of the court that the sum total of the accounts of both parties exceeds one hundi’ed and fifty dollars,” to recover costs also. (Norton v. Wilson, 30 Cal., 126; Brady v. Durbrow, 2 E. D. Smith, 78; Gilliland v. Campbell, 18 How. Pr., 177.) And the record conclusively shows that the amount of the accounts of both parties exceeds the sum mentioned in the statute. The court could not but have been satisfied on that point. The answer admits one hundred dollars of appellant’s demand, unless covered by the agreement set up in the first separate defense. The verdict for appellant for any sum, however small, virtually determined that such agreement had no existence. It was either a good defense to the whole of appellant’s claim, or else to no portion of it, and- was negatived by the finding of any sum due him upon it. But the verdict settles another question in the case. It decides that ninety-five dollars, at least, of the amounts plead as counter-claims was proven to the jury.

We must presume, then, that the fact that the sum total of the accounts of both parties was in excess of one hundred and fifty dollars did appear to the satisfaction of the court below. And it was error not to give the appellant judgment for costs, instead of adjudging them to the respondent. The other questions discussed at the hearing seem to us not to require any discussion here. The court below refused to give appellant the judgment we hold he was entitled to, and gave respondent one to which he was not entitled. We are clearly of the opinion that the appeal lay.

Judgment reversed, with costs to appellant.  