Plaintiff was the owner of some flax, defendant owned a threshing machine. Defendant agreed to thresh for plaintiff, but there is a dispute as to the terms of the contract. Plaintiff claims defendant was to thresh his flax immediately after a specified neighbor; defendant says he was to thresh for plaintiff at a later time. When the time to thresh, under plaintiff’s version, had arrived, defendant refused to come, whereupon plaintiff stacked his flax at an expense of $125. When defendant thought the proper time had arrived, plaintiff would not let him do the job. Some other thresher did the work later in the fall, and in the meantime the price of flax had dropped 30 cents a. bushel. Plaintiff brings this action in district court, asking for two items of damage, — first, for the $125 which he had paid for stacking his flax; and, second, for the 30 cents a bushel drop in the market price •of 700 bushels of flax. The case was tried to a jury, who found in favor of the plaintiff and assessed his damages at $25, instead of the $335 demanded. The trial court taxed costs in favor of the defendant upon the theory that the action should have been brought in the justice *492court. As the taxable costs exceeded the amount of the verdict, defendant was really a little to the good and did not bother to appeal. Plaintiff, however, appeals from the order denying him. a new trial.
(1) Appellant says in his brief: “If the plaintiff was entitled to-recover anything, he was entitled to recover $335, being the loss he actually sustained. There is no evidence in the record warranting the jury in finding for the plaintiff for only $25.” It is evidently his desire to get a new trial in order that he may recover a larger verdict next time. He is attacking the validity of his own verdict, because — as he says — there is no evidence to sustain it. On the other hand he does not claim that the evidence is such that he was entitled to a directed verdict for any amount. We do not agree with his logic. The court had, no doubt, the right to set aside the verdict if unsupported by evidence. It also had the right to set it aside if it was palpably inadequate, but the facts do not call for any such relief. It is almost too clear for argument that the depreciation in the price of flax was not chargeable to the defendant. Hayes v. Cooley, 13 N. D. 204, 100 N. W. 250; Lynn v. Seby, 29 N. D. 420, L.R.A.1916E, 788, 151 N. W. 31. It was apparent to the jury that the cost of'Stacking the flax was not chargeable to the defendant without proper deductions for the lessened expense of threshing the same. Gathering the grain together in one place must be done in shock threshing as well as in stack threshing, and it is only the ultimate difference in cost which should be allowed as" damages. The jury, no doubt, took into consideration all of those facts. As the defendant has not complained of the verdict it will stand.
(2) The taxation of costs in favor of the defendant provokes the second assignment of error. Section 7794, Comp. Laws 1913, reads as follows: “Costs shall be allowed of course to the plaintiff upon a recovery in the following cases: 1. ... 2. .... 3. In the actions of which a justice’s court has no jurisdiction. 4. In an action for the recovery of money when the plaintiff shall recover fifty dollars. . . . Costs shall be allowed of course to the defendant in the actions mentioned in this section unless the plaintiff is entitled to costs therein.” Appellant submits no cases in point, and the only cases upon this subject coming to our attention (those from South Dakota and the ones therein cited) appear to be against his contention. The South Dakota *493decisions upon the identical statute start with Pyle v. Hand County, 1 S. D. 385, 47 N. W. 401, where the plaintiff brought suit in the circuit (corresponding to our district) court, for $271.95, and the jury gave him a verdict for $1. The court says: “Should plaintiffs, however, bring their actions in the higher courts, when the subject-matter was within the jurisdiction of justice of peace courts, a penalty was fixed against them, by requiring them to pay the costs of the action, unless the recovery was for $50 or more. The test is, Had the court of justice of the peace jurisdiction of the subject-matter at the time of the institution of the suit? If it had, a recovery for less than $50 by the plaintiff subjects him to the penalty of paying the costs.”
In De Smet Twp. v. How, 4 S. D. 163, 56 N. W. 84, suit was brought in the circuit (district) court for an amount in excess of the jurisdiction of the justice of the peace, but the recovery was for $40.71. The court says: “We are of the opinion that the true construction of that provision, taken in connection with § 6042, conferring jurisdiction on justices’ courts, is that'the defendant is entitled to costs in an action for the recovery of money, when the plaintiff recovers less than $50, where the justice would have had jurisdiction of the subject-matter in case the claim stated in the summons or complaint had been made for a sum within the jurisdiction of the justice. In other words, in determining the question as to the party entitled to costs, the amount claimed in the summons or complaint in the circuit court is not material if the amount recovered is less than $50, and the justice’s court would have had jurisdiction of the action if the amount recovered had,, been claimed in an action in a justice’s court. If the amount claimed in the action in the circuit court could be considered in determining the question of costs, it would be in the power of any plaintiff to bring his action, whatever his claim might be, in the circuit court, and recover costs hy claiming an amount in his complaint in excess of the jurisdiction of a justice, though he might recover less than $50. Such a construction of the statute is entirely inadmissible. The evident intention of the legislature in adopting the provisions of the statute' requiring the plaintiff to pay costs whenever he recovers less than $50 in an action that might have been brought in a justice’s court was to prevent parties from instituting suits in the courts of record to recover demands really within the *494jurisdiction, of justices of tbe peace, by imposing tbe penalty of payment of costs upon tbe plaintiff wben be fails to recover $50 or more. It matters not, therefore, what tbe plaintiff claims in bis complaint, if be recovers less tban $50 in a case in wbicb a justice’s court has jurisdiction of tbe subject-matter. Tbe construction we give to our statute' seems to be tbe construction given to a similar provision of tbe Code of tbe state of New York by tbe courts of tbat state.”
In Laney v. Ingalls, 5 S. D. 183, 58 N. W. 572, tbe court says: “The jury found, by its verdict, tbat defendant was indebted to plaintiff in tbe sum of $36.12, wbicb amount was witbin tbe jurisdiction of a justice of tbe peace; and tbe pleadings show tbat a justice of tbe peace could bave tried tbe case bad plaintiff claimed no more tban be was entitled to recover. By demanding more tban was justly due, plaintiff' placed bis claim beyond tbe jurisdiction of a justice of tbe peace; and, wben it is found tbat tbe amount to wbicb be is entitled is witbin such jurisdiction, tbat fact is presumed to bave been witbin bis knowledge at tbe time tbe suit was instituted, and be ought not to be permitted to deprive tbe defendant of a speedy and comparatively inexpensive trial in a justice’s court, and at tbe same time burden bfm with tbe unnecessary costs and disbursements of a trial in tbe circuit court.” Citing: Alexander v. Hard, 42 How. Pr. 131; Landsberger v. Magnetic Teleg. Co. 8 Abb. Pr. 35; Kreuger v. Zirbel, 2 Wis. 233; Peet v. Warth, 1 Bosw. 653; Meebl v. Schwieckart, 67 Barb. 599. See also: 11 Cyc. 11 and 5 Standard Proc. p. 878.
To be true, most — if not all — of those cases were suits upon a promissory note, but some of these showed upon their face an amount in excess of tbe jurisdiction of tbe justice’s court, and tbe verdict was reduced by counterclaim. Tbe reason for tbe adoption of this section as-given by tbe South Dakota court applies as well to tort actions as to' actions upon promissory notes, and we see no reason for drawing tbe distinction desired by appellant. It follows, therefore, tbat tbe trial court assessed tbe costs against tbe proper party, and tbe judgment is-in all things affirmed.