Purvis v. Kroner

Strahan, J. Upon an appeal from the clerk’s taxation of costs, the original judgment awarding costs and disbursements can be neither attacked or reversed. The only questions arising on such appeal are the items or amounts to be taxed and allowed. The judgment in the case has already concluded the question as to which party is entitled to costs, by awarding the same to the party entitled, according to the facts of the case, and the clerk, in the taxation, or settlement of the amount, has nothing whatever to do with the other question. That question was for [416] the court, and is settled by the judgment. Such was the effect of the decision of this court in Burt v. Ambrose, 11 Or. 26. This view of the subject renders an examination of the question attempted to be raised on the appeal from the clerk’s taxation entirely unnecessary, for the reason that the appellant’s contention lies back of that. What he really complains of is that the judgment awarding costs to the plaintiff is erroneous, and that under the facts disclosed by this record the defendant was entitled to costs, of course, and to that question ciur attention will be directed. “Costs are allowed, of course, to the plaintiff upon a judgment in his favor in the following cases: (1) -, (2) -• (3) In an action involving an open mutual account, where it appears to the satisfaction of the court that the sum total of such account of both parties exceeds §150.” Hill’s Code, § 549. Under this provision of the Code and the facts disclosed by this record two questions are presented: (1) Does this action involve an open mutual account; and (2) Does the sum total of such accounts of both parties exceed §150? And first, does this action involve an open mutual account? An open account is one in which some item of the contract is not settled by the parties, whether the account consist of one item or many; or where there have been running or current dealings between the parties and the account is kept open with the expectation of further dealings. Am. & Eng. Ency. of L., vol. 1, p. 109, and cases cited, and the author, at page 108, says that an account is a. list or statement of monetary transactions, such as payments, purchases, sales, debts, credits, etc., in most cases showing a balance or result of comparison between items of an opposite nature, e. g., receipts and payments. And “mutual accounts” are those having original charges by persons against each other, accounts kept between merchants. Anderson’s Law Dictionary, Title, Account. So in Green v. Disbrow, 79 N. Y. 1, in discussing a similar question the court say: “The evidence is that he directed his son and his wife to take the butter and eggs to the plain [417] tiff and have them applied upon the account, and they took them to the plaintiff and he received them and without any particular direction or agreement with him he at once credited them on his account. No other account was kept of them, except that kept by him. That this is a mutual open current account of reciprocal demands within the meaning of the statute, I can entertain no doubt.” The same statute received a like construction in Norton v. Lasco, 30 Cal. 126. It is true the language construed in both of these cases was to be found in the statute of limitations, but the substance of it is the same as our statute concerning costs. From an inspection of the transcript I have no hesitancy in saying that the accounts between the parties in this case were open; that is, they -were unsettled and unadjusted and that they were mutual. The defendant demanded an itemized statement of the plaintiff’s account, which was furnished and the same accompanies the transcript. It consists of nearly five pages of closely written items of debit and credit. The debit side of the account amounts to §379.50 and the credit side to §242.55, showing a balance in favor of the plaintiff of §136.95. On the-other hand, the plaintiff demanded of the defendant an itemized statement of his account set up in his answer, which also is in the transcript. It consists of three pages of items, and shows a balance in favor of the defendant of §4.60. These accounts cover nearly the same period of time and are in the fullest sense of the word mutual accounts. They show the daily transactions between the parties as they understood them, each making charges against the other and giving credits to the other according to his own view of the transaction. It was the difference which arose in regard to these transactions which caused this litigation. Second, the most casual inspection of the pleadings and the accounts on file show that the sum total of such accounts of both parties exceeds §150, clearly bringing the case within the very words of the statute above quoted. Counsel for appellant seeks to [418] avoid this view of the subject by treating the items of his side of the account as payment; but I do not think the parties so regarded or treated them, and they do not on their face purport to be payments. When called upon by the plaintiff to furnish an itemized statement of his account, the appellant served with said account a notice reciting that in pursuance to your demand for verified copy of the account claimed by defendant as existing between plaintiff and defendant with regard to the matter at issue in the above entitled action, defendant hereby furnishes the following as such account, to-wit: And then follows the items—more than that, the plaintiff’s account opens on the twelfth day of December, 1888, the defendant’s on the fifteenth day of October, 1888, and according to the defendant’s account, the plaintiff was indebted to him for merchandise and cash in the sum of $36.75; that is, up to December 11, 1888, before the plaintiff had performed any labor whatever for him. I think it cannot be successfully claimed that this payment was made before there was any labor performed on the other side, or debt or liability incurred. But it is useless to follow this question further. This case shows that it has been litigated with perhaps unnecessary tenacity, where there was only a small difference between the parties and a large amount of cost unnec-essarily incurred; but this court has no power to aid the parties. The law has fixed the right to cost with just as much certainty as it has any other right which is successfully maintained in court, and when the prevailing party brings himself within the statute he is as justly entitled to recover the same. It follows that there was no error in the judgment, and it must be affirmed.