
    Warden, Appellant, vs. Sweeney, Respondent.
    
      September 27
    
    
      October 17, 1893.
    
    (1) Appeal: Trifling error. (2) Tender. (3) Justices' courts: Offer of judgment: Costs.
    
    t. A verdict will not be disturbed because the trial judge made an error of ten cents in stating to the jury the amount which plaintiff should recover in case certain facts were found.
    2. An alleged tender in this case is held to have been insufficient, the amount offered being less than was admitted to be due, and there having been no notice as to where the money or its equivalent might be found if the other party should conclude to accept it, and the tender not having been kept good.
    3. An offer by defendant to bring into court a certain sum to be paid to plaintiff, unaccompanied by any offer to pay the costs’ up to that time, is not a sufficient offer of judgment under sec. 3627, R. S., to entitle defendant to costs subsequently accruing.
    APPEAL from the County Court of Doclge County.
    This action was commenced September 25,1891, in a justice’s court, to recover $90.80, the alleged value of a car' load of hay purchased of the plaintiff by the defendant. The defendant answered to the effect that he only promised to pay the plaintiff for the hay, $84.92; that July 8,. 1891, he tendered to the plaintiff that amount in payment therefor, but that the plaintiff refused to receive the same;, that the defendant had ever since remained, and still was, ready and willing to pay to the plaintiff that amount for the hay, but that the plaintiff had hitherto refused to re- • ceive the same, and offered to bring the amount into court, to be paid to the plaintiff, if he would accept it.
    On the trial the plaintiff recovered judgment for $90.80 damages and costs. The defendant thereupon appealed to-the county court, where the cause was retried before’and by a jury, and at the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his. damages-at $84.85. Thereupon the court held as matter of law that the defendant had before the trial duly tendered and paid into court the amount of said verdict, and hence that he was entitled to costs, which were taxed at $61.51, and rendered judgment in favor of the plaintiff for the difference between that amount and said verdict, to wit, for $28.34. The plaintiff appeals.
    For the appellant there was a brief by Elwell <& Burke, attorneys, and II. W. Sawyer, of counsel, and oral argument by Mr. Sawyer.
    
    For the respondent there was a brief by James E. Malone, attorney, and J. J. Dick, of counsel, and oral argument by Mr. Dick.
    
   Cassoday, J.

In March or April, 1891, the defendant weighed and pressed hay for the plaintiff, and attached to each bale a tag, upon which he marked the weight of such bundle. Such bales naturally shrunk in weight as the summer came on. In June, 1891, the defendant purchased of the plaintiff a car load of such hay, and was to pay therefor $12.25 per ton. The principal dispute on the trial wras whether the defendant was to take the hay at the weight so marked-on the tags or at its actual weight. We think the question thus in dispute was legitimately for the jury, and we do not feel warranted in setting aside the verdict as against evidence. Hurd v. Milton, 82 Wis. 406. Nor can we disturb the verdict because the judge in charging the jury made an error of ten cents in stating “ that if the sale was made by actual weight the verdict should be $84,85.” We conclude that the verdict is conclusive upon the plaintiff. But the trial court, as we think, erroneously allowed costs in favor of the defendant. The tender pleaded and attempted to be proved was entirely insufficient. Some time prior to the commencement of the action the defendant, through the agency of his wife, offered the plaintiff his check for the amount named in the verdict; but he refused to accept it. Such offer was renewed in money soon after, but the amount was less than the defendant admitted to be due, nor was it accompanied by any notice as to where the money or its equivalent would be kept or might be found in case the plaintiff should conclude to accept it, nor was it kept good.

The learned counsel for the plaintiff contends that the answer contained an offer of judgment as prescribed in sec. 3627, E. S.; and that, as the plaintiff failed to recover a more favorable verdict than he would have done by accepting the offer, lie was not entitled to recover the costs made after the offer, but was bound to pay the costs so made to the defendant, as prescribed in sec. 3628, E. S. But for the defendant to avail himself of the benefit of sec. 3627, E. S., he was bound to accompany his offer to pay the $84.92 with the plaintiff’s costs up to the time of making the offer, as prescribed in that 'section. This he did not do.

By the Court.— The judgment of the county court is reversed, and the cause is remanded with direction to enter judgment against the defendant for the amount of the verdict and interest and the taxable costs and disbursements of the plaintiff in the action, and for further proceedings according to law.  