Stevenson v. Ennis

39 Ind. 216

Opinion

Worden, J.

Action by the appellant against the appellee, on an implied assumpsit for the pasturage of certain cattle. Answer of general denial, and two special paragraphs, neither of which was a counter claim or set-off. Verdict and judgment for the plaintiff for forty-two dollars. Judgment was rendered against the plaintiff for costs, the action having been commenced in the common pleas, and from that judgment he appeals and seeks a reversal in respect to the costs.

On the trial, the plaintiff’s testimony made out a case apparently entitling him to a little over fifty-one dollars, but the defendant’s evidence had a tendency to show that the fences around the land, on which the cattle were pastured, were bad, and that the cattle at times escaped therefrom, and hence, that the cattle were not really pastured by the plaintiff as long as his evidence tended to establish. This evidence was competent under the general denial, as it tended to reduce the time of the claimed pasturage of the cattle.

Y. Railsback and A. B. Young, for appellant. W. A. Peette and H. C. Fox, for appellee.

The jury found there was due to the plaintiff for the pasturage forty-two dollars. The amount claimed by the plaintiff was not reduced by counter claim or set-off. Under these circumstances, we think it quite clear that the plaintiff was liable for costs, and that the judgment below should be affirmed. 2 G. & H. 227, sec. 397.

The judgment below is affirmed, with costs.