On Petition for Rehearing.
(143 Pac. 1126.)
Mr. Justice Burnettdelivered the opinion of the court.
In a petition for rehearing it is strongly urged that the issue and acceptance of the three so-called “pool certificates” for $6,000 each, upon which the action is maintained in three counts, constituted an account *520stated binding upon the court, and precluding inquiry into the original transaction upon which it is based.
3. The complaint gives a history of all the evidence and draws the conclusion that the result was “an account stated. ” As a question of pleading, the case is much like Nicoll v. Haas, 5 App. Div. 206 (39 N. Y. Supp. 205), where the court said:
‘ ‘ The words really amount to nothing more than the plaintiff \s conclusion as to the effect of a part of his evidence. Having fully stated his real cause of action, he adds that he has rendered bills therefor which were agreed to, and that thus this cause of action ‘stands as account stated. ’ This is pleading evidence and a conclusion therefrom. But it is not a substantial plea of an account stated. ’ ’
It is manifest that between April 25, 1910, the date of the original “pool certificates,” and June 1, 1910, when the new ones were issued in denominations of $6,000 each, nothing could have occurred to double the amounts except “profits.” Only such gains would constitute the subject matter of an accounting with such a result. Something to be accounted for is as necessary to a stated account as the parties themselves. Common sense requires us to look at the substance of things, and, if there were no “profits” (and the complaint does not allege there were any), there could be no accounting for them.
4. If there were no other issues involved in the pleadings, as, for instance, the one about the alleged fraud of the plaintiff and his associates concerning the condition of the vessel as to seaworthiness, whereby the defendant was induced to assume the obligation in question, we might render judgment here for the plaintiff for $9,000, the original purchase price and interest. We would probably be justified in that' disposition of *521the case under this clause found in Article VII, Sec-, tion 3 of the Constitution of the state:
‘ ‘ Or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.”
However, having no evidence on such other issues, we cannot apply this part of the fundamental law, and the case must of necessity be returned to the Circuit Court for proper adjustment.
The petition for rehearing is denied.
Rehearing Denied.
Motion to Retax Costs Allowed.
Allowed October 6, 1614.
On Motion to Retax Costs.
(143 Pac. 1126.)
Opinion
Per Curiam.In his motion to retax costs and disbursements, the plaintiff objects to matter printed in the defendant’s abstract as follows: (1) Twenty-seven and one-half pages of quotations from the testimony accompanied by objections of counsel and the rulings of the trial court upon them, all being a compilation from the bill of exceptions; (2) three pages* devoted to printing the notice of appeal and undertaking; and (3) three pages stating the assignments of error.
5. The statutory rule is that “a party entitled to costs shall also be allowed for all necessary disbursements”: Section 566, L. O. L. The question, therefore, *522is whether the items mentioned are necessary printing expenses. As decided in the original opinion, following numerous precedents, the bill of exceptions being a verbatim report of everything spoken at the hearing, without classification or segregation as to the errors of law-suggested, it could be considered only for the purpose of determining whether it was a mistake to direct a verdict for the plaintiff. In that form it was not sufficient to raise the numerous questions raised by the excerpts printed in the abstract. Not having a proper bill of exceptions behind it, all the matter in the abstract under that head was useless, and hence the expense of printing was not a necessary disbursement.
6. Copies of the notice of appeal and undertaking are made part of the transcript to be filed by the appellant, under the terms of Section 554, L. O. L. It is therefore not necessary to print the same matter in the abstract.
7. We cannot allow the omnibus objection to the printed assignments of error, for it includes the statement that the court erred in sustaining the motion of plaintiff’s counsel for a directed verdict. This is a proper specification of error and must operate as the saving leaven for the whole lump in this feature of the case, seeing that the objection includes it with other matter which might be held unnecessary.
On the ground that the same is not a necessary disbursement, under the well-established rules about the frame of a bill of exceptions, the objections will be sustained as to specifications 1 and 2. The remaining objection will be denied, because it includes a legitimate assignment of error with others which might have been eliminated under a challenge applied to them only. The costs and disbursements will therefore be retaxed in favor of the defendant as follows;
*523Filing fee.................................$ 15 00
County clerk for transcript.................. 3 35
Printing abstract 70 pages at $1.00.....$70 00
Deduct 30% pages superfluous as stated. 30 50 39 50
Printing brief............................. 24 00
Costs.................................... 15 00
Trial fee.................................. 6 00
Total.................................$102 85
Por which judgment will be entered in favor of the defendant.
Motion to Betas Costs Allowed.