#### M. M. RITCHIE v. MRS. G. G. RITCHIE et al.

(Filed 17 November, 1926.)

1. Judgments — Contracts—Vendor and Purchaser — Counterclaims.

Where, in an action for a money demand for goods sold and delivered, brought in the court of a justice of the peace and tried on appeal in the Superior Court, wherein defendant recovered upon his counterclaim set up by way of answer, a less sum than that as'certained to be due by him to plaintiff, the judgment awarding the plaintiff the difference so found is correct.

2. Same — Courts—Appeal—Costs—Statutes.

On an appeal from the court of a justice of the peace to the Superior Court, the trial in the Superior Court is de novo, and its costs in both courts are required by the statutes applicable to be taxed against the unsuccessful party, or, as in this case upon a judgment in plaintiff’s favor for the difference between the amount of her demand over that allowed upon defendant’s counterclaim set up by way of answer. C. S., 661, 1256.

Civil ACTION, before Siaclc, J., and a jury, at February Term, 1926, of StANLY.

The plaintiff brought a suit against the defendants in a court of the justice of the peace, alleging that the defendants were indebted to him in the sum of $143.19. The defendants denied the indebtedness to the plaintiff and set up a counterclaim against the plaintiff for $227.67 for lumber sold and delivered by the defendants to the plaintiff. The judgment of the justice of the peace recites that the defendants were indebted to the plaintiff in the sum of $143.19, and that the plaintiff *539was indebted to tbe defendants upon tbeir counterclaim in tbe sum of $160.49, and thereupon rendered judgment against tbe plaintiff for tbe difference, to wit, tbe sum of $11.30. Whereupon, tbe plaintiff appealed to tbe Superior Court. Tbe defendants did not appeal. Tbe case was tried upon issues directed to tbe claim of plaintiff and tbe counterclaim of defendants. By consent of tbe parties tbe issue in favor of plaintiff was answered $143.19 with interest, and tbe issue upon defendant’s counterclaim was answered by tbe jury awarding tbe defendants $132.86 with interest upon tbeir counterclaim.

Tbe portion of tbe judgment pertinent to this appeal is as follows: “It appearing from tbe answers to tbe above issues by tbe jury that tbe amount due tbe plaintiff on bis account sued on in this action is $143.19, which was admitted by tbe defendants, and that tbe amount due tbe defendants by tbe plaintiff on tbeir counterclaim set up in tbeir answer is $132.86, and that tbe defendants are indebted to tbe sum of $10.33, tbe difference between tbe plaintiff’s claim sued on and admitted by tbe defendants, and tbe defendants’ counterclaim allowed by tbe jury, as shown in issue No. 2 above.

“It is thereupon ordered, decreed and adjudged that tbe plaintiff recover and have judgment against tbe defendants for and in tbe sum of $10.33, with interest from 5 May, 1922, until paid.

“It is further ordered and adjudged that tbe plaintiff pay one-balf of tbe cost incurred in tbe justice’s court and that tbe defendants pay tbe other half of tbe cost incurred in tbe justice’s court.

“It is further ordered and adjudged that tbe plaintiff pay tbe cost incurred in tbe Superior Court, to be taxed by tbe clerk of this court.”

From tbe judgment so rendered tbe plaintiff appealed to tbe Supreme Court.

W. L. Mann for plaintiff.

B. L. Smith & Son and J. B. Price for defendants.

BkogdeN, I.

Tbe defendants alleged as a basis of tbeir counterclaim against tbe plaintiff that they bad sold and delivered to him certain lumber at tbe price of $20.00 per thousand for tbe rough lumber and $25.00 per thousand for tbe better grades. Tbe defendants offered evidence tending to show that tbe lumber was delivered to tbe plaintiff, and that it was stacked up by him upon tbe mill yard, and that be accepted it, and that no notice was given defendants that tbe lumber was not according to contract until after tbe lumber plant of plaintiff bad been destroyed.

*540There was also evidence to the effect that the plaintiff bad designated where the lumber should be unloaded and stacked, and that plaintiff had sold part of the lumber to certain parties and appropriated the proceeds thereof to his own use.' The plaintiff contended that the lumber was stacked up by him in order to get it out of his way, and that he had refused to accept it because it was not of the grade specified in the contract of purchase.

The trial judge permitted evidence as to the market value of the lumber over plaintiff’s objection, the plaintiff contending that there was an express contract between the parties, and therefore no evidence was admissible tending to show the market value of the property at the time it was delivered.

The trial judge charged the jury in substance, that if the jury found by the greater weight of evidence that the defendants delivered the lumber to the plaintiff at his plant, and that the plaintiff received it and accepted it and kept it, that the law would imply that he should pay its reasonable market value, whether it was according to the contract or not. The court further charged the jury in substance that if the jury should find from the greater weight of the evidence that the lumber was delivered to the plaintiff, and that he designated a place where it should be placed, stacked it up and counted it, and sold part of it and kept the proceeds of the sale and applied the same to his own use, that this would constitute an acceptance of the lumber and render the plaintiff liable for the value of the lumber received.

The principles of law thus declared are correct. Brown v. Morris, 83 N. C., 251; Simpson v. R. R., 112 N. C., 703; McCurry v. Purgason, 170 N. C., 463.

The principal exception relied upon by the plaintiff, and the one urged in the oral argument, was to that portion of the judgment taxing the costs in the Superior Court against the plaintiff and one-half the costs incurred in the court of the justice of the peace.

C. S., 661, provides that when the return of an appeal from a court of the justice of the peace is made to the Superior Court, that the clerk of the appellate court shall docket the case for a new trial of the whole matter. Hence when the plaintiff appealed from the judgment of the justice of the peace and the appeal was duly docketed, the cause should have been tried in the Superior Court d& novo.

C. S., 1256, provides: “On an appeal from á justice of the peace to a Superior Court ... if the appellant recovers judgment in the appellate court, he shall recover the costs of the appellate court and those he ought to have recovered below had the judgment of that court been correct, and also restitution of any costs of any court appealed from which he has paid under the erroneous judgment of such court.”

*541Costs are entirely creatures of legislation and constitute an incident of tbe judgment. Williams v. Hughes, 139 N. C., 17; Waldo v. Wilson, 177 N. C., 461.

In S. v. Horn, 119 N. C., 853, Clark, J., says: “There is no exception in State cases to the rule prevailing in civil cases that the costs follow the result of the final judgment.” The true and only test of liability for costs depends upon the nature of the final judgment, and the party cast in the suit is the one upon whom the costs must fall. Kincaid v. Graham, 92 N. C., 154; Williams v. Hughes, 139 N. C., 17; Smith v. R. R., 148 N. C., 334; Cotton Mills v. Hosiery Mills, 154 N. C., 462. In equitable proceedings costs are in the discretion of the court. Yates v. Yates, 170 N. C., 535; Hare v. Hare, 183 N. C., 421. But this case is not an equitable proceeding, and the costs must follow the final judgment.

The defendants rely upon the case of Southerland v. Brown, 176 N. C., 187. In that ease the plaintiff recovered judgment for specific personal property, and the defendant a judgment for $1.55 in money. Justice Walker says: “The latter cannot be deducted from the former, as it is impossible, in the nature of things, to do so. Plaintiff will seize and take the property into, his possession, while the defendant will get his money by execution and levy upon any property of plaintiff. The recoveries therefore are distinct.”

Justice Walker says further: “It is not like a claim for a money judgment and a counterclaim of the same kind, in which the smaller amount recovered would be deducted from the larger and judgment given for the difference to the party entitled to it.”

Therefore, the case of Southerland v. Brown, supra, supports the contention of the plaintiff, for this present case is a claim for'a money demand, and the counterclaim is of the same kind, and the smaller amount recovered is deducted in the judgment from the larger amount, and judgment given for the difference to the party entitled to it. Hence the recoveries are not distinct, but both recoveries are based solely upon money demands between the parties, and the plaintiff, having recovered upon such demands a final judgment for the difference, is entitled to recover the entire costs under the statute and the decisions of this Court.

The judgment will be modified to the extent of taxing the defendants with all court costs, and with this modification the judgment is

Modified and affirmed.