White v. Hale

Lyon, J. The learned counsel for the defendant assumes that the action sounds in tort, and that the defendant is entitled to costs under section 2920 and subdivision 5 of section 2918, E. S, "Were this an action of tort, his position would be correct. But it is not such an action. Although the complaint seems to have been originally drawn charging a fraudulent warranty, it has been amended by striking out everything [426] which tends to charge fraud or deceit; and as it now stands it states a cause of action ex contractu, and not ex delicto. The action being upon contract, the demand in the complaint exceeding $100, and the complaint being duly verified, the case is ruled by subdivision 7 of section 2918, which, in a case like this, gives the plaintiff such costs as the court in its discretion may allow. In the exercise of that discretion the circuit court has given the plaintiff full costs. The testimony has not been preserved, and there is nothing in the record which authorizes us to say that the allowance of such costs was an abuse of discretion; hence we cannot disturb the judgment. See Power v. Rockwell, 39 Wis., 585. By the Court. — The judgment of the circuit court is affirmed.