Bradley & Vrooman Co. v. Summer

The opinion of the court was delivered by Johnston, C. J.:

The only question raised by this appeal is the validity of an award of costs in favor of defendant when the court had given judgment in favor of plaintiff upon a part of its claim.

Plaintiff sued the defendant for $427.41, alleged to be due upon an account for paint sold by it to the defendant. The defense was that the paints were represented to be of a certain quality and that an agreement had been made that if they were not up to that standard the defendant had the right to return the same. Defendant •claimed that when the paints were received and a part of the same had been disposed of, complaints of quality came in from customers, and upon investigation he found the paints were inferior in quality and not up to the agreed standard. He then returned that part of the goods which had not been sold and also sent plaintiff a check for $144.81, which he said was the balance due for the goods which had been sold. Plaintiff refused to accept the tender made and brought suit for the amount for which the goods were sold. . When the defendant answered setting up his defenses, he renewed his tender of $144.81, and alleged that he was ready to pay the same to the clerk upon the.order of the court.- On a trial before a jury they found the amount due to plaintiff to be $144.81, and thereupon the court awarded the plaintiff that amount, but adjudged that the defendant recover the costs of the action taxed at $106.71. *663 The contention óf the plaintiff, which appeals, is that the tender as made was insufficient in that it did not include an offer to pay the accrued costs and that the verdict of the jury in its favor legally entitled it to a judgment for costs.

The defendant plausibly argues that his tender of the full amount due upon the debt before the action was brought, and which he renewed and kept good in his answer, precludes a recovery of costs by plaintiff, but it must be held that the court is without -jurisdiction to determine the question. The only matter in controversy is the decision as to the recovery of costs. In plaintiff’s notice of appeal it expressly stated that this question is the only part of the judgment brought up for review. Limitations have been placed upon appeals,- and under the code no appeal lies from a decision where only costs are involved. (Civ. Code, § 566; Oswald v. Railway Co., 104 Kan. 281 , 178 Pac. 621 , and cases there cited.)

Although the question: of jurisdiction is not raised by the defendant, the lack of power in the court to review the decision is apparent, and it is the duty of the court to raise the question itself and dismiss the appeal.

Dismissed.