(On Petition for Rehearing). In a petition for rehearing plaintiffs ask that the former decision be modified in two particulars. It is said that this court erred: (1) “in deciding that the appellant is entitled to set off the judgment which was awarded to it for costs and disbursements on the former appeal;” and (2) “in holding and deciding that the appellant should be awarded costs on this appeal.” These propositions will be considered in the order stated.
(1) It is true, as plaintiffs’ counsel assert, in this state judgments may not be set off one against the other in such manner as to defeat the exemption laws. Cleveland v. McCanna, 7 N. D. 455, 75 N. W. 908, 41 L.R.A. 852, 66 Am. St. Rep. 670. But the question in this case is not one of setting off mutual final judgments predicated upon different rights of action and obtained in separate and distinct suits. The question is merely one of adjusting costs and disbursements arising out of or expended in the course of the same action, and the rule that applies in off-setting mutual final judgments does not apply. Hoyt v. Godfrey, 11 Daly 278. In a sense all costs and disbursements that are assessed or allowed before the final determination and entry of final judgment are interlocutory. The final judgment should dispose of all questions incident to the litigation including costs and disbursements therein; and the final judgment to be entered in this case upon the remand here should, we think, dispose of every item involved in, or arising during the course of, the litigation including costs and disbursements. We are aware of no rule whereby a party who has instituted an action may insist that when final judgment is rendered it shall be for an amount in excess of that which is actually coming to him at that time, i. e., at the end of the litigation. On the contrary, it is generally recognized *92by the authorities that not only may costs be set off against costs, but also against the amount of the recovery allowed in the cause of action, and that judgment shoidd be rendered for the excess in favor of the party to whom it actually belongs. Johnson v. Farrell, 10 Abb. Pr. 384; Hullock, Costs, p. 469; Irving Trust Co. v. Leff, 137 Misc. 834, 243 N. Y. S. 728; Damp v. Dane, 33 Wis. 430; Van Pelt v. Phillips, 24 N. J. L. 560.
The suggestion that this court may not take notice of, but should ignore, all that has happened in this litigation and that it may not even take notice of the proceedings had as a result of its own orders and decision in this suit is so obviously without merit as to require no extended consideration. Van Pelt v. Phillips, supra.
We see no reason for modifying the former decision as regards the question under consideration here. Further reflection has merely tended to confirm the views which we entertained when that decision was promulgated. No authority has been cited and none has been found announcing a contrary rule while many announce rules in harmony with such decision.
(2) It is next contended that the court erred in awarding appellants costs on this appeal. This contention is predicated upon the alleged proposition that there are no assignments of error authorizing this court to consider whether the verdict is excessive.
In the former opinion the controlling facts in this case are set forth in some detail. It will be seen from these facts that the verdict returned and the judgment entered against the defendants awarded a recovery for an amount that was clearly in excess of any injury that the- evidence established. In short, it' allowed the plaintiffs recovery not only for what they had paid and expended but as well for what they had promised to pay and had not paid. In respondent’s brief on this appeal it is said
“After the trial, plaintiff offered to have the judgment reduced, to the amount of the notes held by the defendant and interest. The defendant refused to comply with the plaintiff’s request and suggestion. The plaintiff at this time is willing that this court may reduce the judgment to the amount of the notes.”
Then follows a statement that the procedure that was adopted in this case is proper, that the jury should bring in a verdict for full amount *93of the purchaser’s damages and that the seller “should have the trial court reduce the judgment to the amount of the notes.” This is followed with the statement that the defendant in its motion for -a directed verdict did not suggest that the notes be deducted and that he does not specify as error on appeal that the jury did not deduct, the notes and that, consequently, as a matter of law, the judgment is correct.
Then follows this statement:
“However, all the plaintiff wants is justice, and he is willing that this court may deduct the amount of the notes, even though the defendant has not suggested or requested it.
“The plaintiff is submitting an affidavit of plaintiffs’ attorney, which was offered to the defendant shortly after the trial on the question of off-setting the notes against the judgment.”
In the affidavit submitted by plaintiffs’ counsel it is stated:
“That within weeks after 'the judgment was entered in the above entitled action, this affiant had a conversation in his office with one Harvey J. Miller, who tried the lawsuit for the defendant in the district court; that in said conversation said Harvey J. Miller asked this affiant if he was taking the position that he was entitled to recover the full amount of the verdict; that if not, as a matter of law said defendants were entitled as a matter of law to have said notes off-set against said judgment; that in response thereto, this affiant told said attorney that the defendant as a matter of law ivas entitled to have the judgment reduced to the amount of the notes and interest, and offered to sign a stipulation accordingly; that in response thereto the said Harvey J. Miller said he would take the matter up with his client and let this affiant know what he wanted done; that no action was taken thereon subsequent thereto.”
In view of this state of thé record it was not deemed necessary to point out in the former opinion the assignments or specifications of error under which the excessiveness of the verdict was considered. The appellants, however, specifically assigned error upon the following instruction:
“You are instructed, Gentlemen of the Jury, with reference to the question of damages in this case that the measure of damages herein is the difference between the reasonable market value of said *94tractor at the time it was received and the reasonable market value it would bave had at said time bad it been in tbe condition as represented by tbe defendants.”
There was, also, a general specification that tbe verdict was excessive.
Tbe instruction as regards ,the measure of damages was clearly in-' correct. Tbe measure of damages in tbe case was not as stated by tbe trial court. That would bave been tbe measure if tbe plaintiffs bad paid tbe entire purchase price or if their notes bad been negotiated to and were owned by a party other than tbe payee so that it was likely that tbe plaintiffs might bave been required to pay them. Fahey v. Esterley Mach. Co. 3 N. D. 220, 55 N. W. 580, 44 Am. St. Rep. 554. In this case tbe notes bave not been paid. They were in tbe possession of and owned by tbe defendant. They formed tbe subject of bis defense and counterclaim. They were produced upon tbe trial and admitted in evidence. Tbe verdict rendered in this case clearly precludes defendants from ever bringing suit upon the notes. If tbe judgment bad not been challenged by this appeal and bad become final, we are aware of no procedure by which tbe defendants would bave been able to bave tbe notes off-set against tbe judgment rendered upon tbe verdict here. It was clearly essential for tbe defendants to take some steps to bave tbe matter corrected. If respondent’s counsel bad desired to obviate tbe effect of tbe excessive verdict be might bave served and filed an offer of remission.
Tbe former opinion is adhered to. A rehearing or modification is denied.
Birdzell, Cb. J., and Burr, Nuessle and Burke, JJ., concur.