Benson v. Braun

TEMPLE, J.

The facts out of which the first point presented in this appeal arises may be briefly stated. Plaintiffs brought an action at law upon a money demand against appellant and another. In addition to his answer denying plaintiffs’ allegations, appellant interposed a counterclaim. Plaintiffs failed to recover against appellant, but did have judgment against a co-defendant. Appellant also failed to recover upon his counterclaim. Judgment was rendered against both defendants for costs.

The judgment for costs against appellant is clearly erroneous. In such cases the court is allowed no discretion. The question is settled by sections 1022 and 1024 of the Code of Civil Procedure. It may be that the costs were nearly all incurred in defending against the counterclaim, but even then the statute does not authorize the court, where the plaintiff fails to recover, to charge the defendant with any portion of the costs.

But the appellant contends that he ought to have recovered upon his counterclaim. It contained two counts. The first was for money had and received, which need not be further noticed.

The second count in the counterclaim is of the same character, except that the facts are set forth'. In it appellant set up a contract for an option to purchase a mining location from plaintiffs, by him and his assigns, for six thousand dollars, on or before September 18, 1897, plaintiffs to furnish a “good certificate showing the title to said claim to be vested in plaintiffs,” except as against the United States.

The contract is copied into the complaint, and contains an allusion to a previous contract, by which plaintiffs were employed by the vendees to sink a shaft on the mine. It is averred that the vendees tendered to plaintiffs the six thousand dollars purchase-money, and demanded the deed with the stipulated certificate, but plaintiffs refused to make the deed or certificate, and as a matter of fact, it is charged, plaintiffs were unable to convey a good or merchantable title to the location.

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Appellant further charged that the vendees entered into possession of the mining location in pursuance of the contract, and, before discovering the invalidity of plaintiffs’ title, expended $1,750 in making lasting improvements on the mine, of the value stated. Rescission and demand are averred.