
    Ward et al. v. Hershberger.
    
      Costs.—Recovery by Defendant.—In a suit in the circuit court for damages for the breach of a contract, where the recovery of the plaintiff is less than fifty dollars, the defendant recovers his costs from the plaintiff.
    
      APPEAL from the Fountain Circuit Court.
   Downey, J.

This was an action by the appellants against the appellee for the breach of a contract relating to the sale and delivery of a lot of corn by him to them. It is alleged in the complaint that the corn was not gathered at the proper time, nor cribbed as it should have been, according to the contract; that it was consequently damaged and of a bad quality; and that the plaintiffs were not aware of these facts when they received and paid for the corn.

The defendant pleaded, first, the general denial; and, second, set-off in the sum of twenty-five dollars for hauling rails and building corn-pens, and for hauling lumber and covering the pens. Reply in denial of the second paragraph of the answer. Trial by a jury; verdict for the plaintiffs for thirty dollars; motion for a new trial by the plaintiffs, because the verdict was contrary to the evidence, contrary to law, and because the damages were too small; overruled; and judgment on the verdict for the damages assessed in favor of the plaintiffs; and for costs in favor of the defendant. The plaintiffs appealed.

The errors assigned are, first, the overruling of the motion for a new trial; second, the taxing the costs against the plaintiffs; and, third, the rendering judgment for costs against the appellants.

There is no ground for an interference with the judgment below on account of the insufficiency of the evidence.

The bill of exceptions shows that the set-off pleaded was not urged, proved, or allowed on the trial. It was right, therefore, to render judgment for costs against the plaintiffs because they recovered less than fifty dollars. “In actions for money demands on contract, commenced in the circuit court or court of common pleas, if the plaintiff recover less than fifty dollars, exclusive of costs, he shall pay costs, unless the judgment has been reduced below fifty dollars by a set-off or counter claim, pleaded and proved by the defendant, in which case the party recovering judgment shall recover costs. When the judgment is reduced below fifty dollars by proof of payments, the defendant shall recover costs.” 2 G. & H. 227, sec. 397,

T. F. Davidson, for appellants.

W. H. Mallory, for appellee.

The cause of action in this case was a money demand on contract, as defined in section 797, 2 G. & H. 335.

The position assumed by counsel for the appellants, that in such a case as this the language of the above section requires the plaintiffs to pay their own costs only, and not those of the defendant, cannot be sustained.

The judgment is affirmed, with costs.  