
    William M. Butler et al. v. Giles W. Kneeland et al.
    In an action brought in the Court of Common Pleas, for recovery of money only, where the facts alleged in a counter-claim set up by the defendant are denied by the plaintiff, and the jury, by a general verdict, finds “the issues joined” for the plaintiff', and assess his damages-at less than one hundred dollars, the plaintiff is not entitled to recover costs.
    Motion for leave to file a petition in error, to reverse the-judgment of Portage District Court.
    The plaintiffs agreed to sell and deliver to the defendants-nine hundred cheeses, and delivered and received their pay for one-half of the cheeses agreeably to the contract. The-remaining half was tendered by the plaintiffs, and refused by the defendants, on the alleged ground that they were defective ; and the plaintiffs brought this action to recover $1,700 damages for defendants’ refusal to receive and pay for the cheese so tendered and refused.
    The defendants answered, alleging that the cheese so tendered, as well as those so received and paid for, were defective, and not such as required by the contract; and they set up a counter-claim for $1,000, on account of the defects in the cheese so received.
    The plaintiffs replied, denying the alleged defects in both lots of cheese, and, on trial of the cause, the jury returned .a general verdict, simply saying: “We, the jury, . . . 'find the issues joined for the plaintiffs, and assess their damages at $5.49.” The court thereupon rendered judgment for the plaintiffs for the $5.49, and for their costs. This judgment, so far as it relates to costs, was reversed by the District Court; and leave is now asked to file a petition in error to reverse the judgment of the District Court.
    
      George M. Tuttle, for the motion :
    1. It appears from the record in this case that a justice -of the peace did not have jurisdiction of the action.
    The recovery must have been the contract price, except as reduced by the counter-claim. The contract price upon the issues as made was the amount of the plaintiffs’ recovery, unless reduced by the counter-claim. Sedgw., Damages, 319 (top paging).
    2. But the plaintiffs were entitled to recover costs, unless “it appear that the case was within a justice’s jurisdiction.”
    The language of the determination in the case in 6 Ohio St. (Brunaugh v. Worley) is probably sufficient to cover this second point, so far as it rests upon the construction of the Btatute here insisted upon. But the very distinction here made does not appear at all to have challenged attention on that occasion. And an examination of that case shows -that, so far as appears from the report, the question here .made did not then arise. Eor aught that appears, the record in that case may have shown that the case was within the justice’s jurisdiction. Unless the aggregate amount of the defendants’ claim and the plaintiffs’ recovery amounted to one hundred dollars, it was within that jurisdiction. The report does not show how that was.
    
      J. H. Nichols, contra:
    The question involved in this case is settled by Brunaugh v. Worley, 6 Ohio St. 597.
    The verdict, in substance, was, that the claim of the plaintiffs amounted to $5.49, and that the defendant was-not entitled to anything on his counter-claim.
   By the Court.

The District Court did not err. The verdict finds all the issues for the plaintiffs. This is, in effect, a finding against the counter-claim. The $5.49 must therefore have been the whole amount allowed upon the claim of the plaintiffs. It follows that the ease is one in which the court had jurisdiction, for the reason that the plaintiffs demand more than one hundred dollars; but they are not entitled to costs, because they recovered less than one hundred.

Motion overruled.  