[File No. 6113.]

#### W. F. KRAMER and Roy Kramer, Respondents, v. K. O. LEE & SON COMPANY, a Corporation, Appellant.

(250 N. W. 373.)

*85Opinion filed August 4, 1933.

Rehearing denied October 10, 1933.

*Sullivan, Hanley •& Sullivan,*for appellant.

*86*Jacobsen & Murray,*for respondents.

Christianson, J.

This case has been before this court on a former occasion. Kramer v. K. O. Lee & Son Co. 61 N. D. 28, 237 N. W. 166. It grows out of a sale by the defendant to the plaintiffs of a sec*87ond-hand gas tractor. There was a written order signed by the plaintiffs. The purchase price was $850.00. The plaintiffs paid $300.00 in cash and executed and delivered to the defendant two notes; one for $250.00 and one for $300.00. The plaintiffs also paid freight charges on the tractor amounting to $64.00. The plaintiffs claim that they were induced to sign and deliver the written order in reliance upon and by reason of false and fraudulent representations made by the defendant. They attempted to rescind the contract and brought suit. On the former appeal this court held that the rescission was not timely and that plaintiff’s right of action, if any, was one for damages resulting from the alleged fraud. The opinion on the former appeal contains a full statement of the facts. The written order in question is set forth there and will not be reproduced here. In the decision on the former appeal this court held that there was no competent evidence as to the value of the tractor if it had been as warranted and what it was worth in the condition in which it was delivered. In the opinion in the case it was said:

> “The plaintiffs must concede liability ... on the notes and mortgages, but are entitled to offset any damages they may have sustained.”

After the case had been remanded to the district court both plaintiffs and defendant filed amended pleadings. In their amended complaint the plaintiffs alleged in substance that the defendant made certain representations and warranties as to the tractor; that it presented to plaintiffs a written order for the purchase ,thereof and represented that such written order contained all the representations and warranties that the defendant and its agents had made; that the defendant prevented the plaintiffs from reading the order and induced each of them to sign and deliver the same and also to sign and deliver the notes and chattel mortgages; that plaintiffs signed and delivered the same in reliance upon the representations made by the defendants and in the belief that the same were true. It is further alleged that the representations were false and untrue and that the written order contained statements and provisions contrary to what the defendant had represented that it contained. It is also alleged that the tractor had no value. The plaintiffs demanded judgment in the sum of $1500.00.

The defendant, in its amended answer, alleged that the tractor was sold to the plaintiffs under a written contract and order; that it was *88.delivered by tbe defendant and accepted by tbe plaintiffs in accordance with such written contract and order and that the same contained tbe ■entire agreement between tbe parties. Tbe answer further denied tbe allegations .of tbe complaint except those admitted. Tbe defendant further, by way of counterclaim, set forth that tbe plaintiffs were indebted to it on tbe two certain promissory notes aggregating $550.00; that such, notes were .secured by chattel mortgage and judgment was demanded for a dismissal of plaintiffs’ action and that defendant have judgment against plaintiff for tbe amount due upon tbe promissory notes, and foreclosure of tbe chattel mortgage. Tbe case was tried to a jury and resulted in a verdict in favor of tbe plaintiffs for $914.00 with interest from March 16, 1921 (this is tbe date of tbe written order and of tbe two promissory notes). Judgment was entered pursuant to tbe verdict and tbe defendant has appealed.

Numerous errors are assigned. Tbe first are directed at the sufficiency of tbe evidence and are predicated upon tbe denial of motions for a directed verdict. It is argued that tbe undisputed evidence shows that the plaintiffs signed a written order; that such written order expressly excludes all warranties; that this order constitutes a written contract binding upon tbe parties; that, consequently, there was no implied warranty of fitness and that tbe plaintiffs are precluded from asserting anything contrary to tbe terms of tbe written contract. Much of this argument- was covered and disposed of in tbe opinion on tbe former appeal. 61 N. D. 36, 231 N. W. 169. Tbe plaintiffs here are not seeking to recover on tbe written contract. They are seeking to recover damages for the wrong which they say was practiced upon them by the defendant in inducing them to sign tbe contract for tbe purchase of tbe tractor, and to purchase and accept tbe tractor.

It is contended that there was no evidence of fraud sufficient to warrant tbe submission of that question to tbe jury. This contention cannot be sustained. Tbe undisputed evidence shows that each of the plaintiffs signed tbe contract at a different time and place. Tbe plaintiff Roy Kramer signed it in a bank in tbe city of New England at tbe solicitation of tbe president of tbe defendant company. Thereafter tbe president of tbe defendant company took tbe contract and tbe notes bearing Roy Kramer’s signature to tbe farm of tbe plaintiff W. E. Kramer (Roy Kramer’s father) where be signed tbe papers. Tbe lat*89ter testified positively that he is unable to read. Both the plaintiffs testified that the president of the defendant company specifically recited to them the warranties which he claimed were embodied in the written order and contract; that he insisted there was no occasion for their reading the order and the testimony.as to both plaintiffs indicate reasons which made it convenient and desirable that they accept his representations and sign the order without taking’ the time to read it or having it read. In the circumstances there is, we think, evidence justifying the submission of the question of fraud to the jury and the defendant is not permitted to say that the plaintiffs should not have accepted his representations as to the contents of the order. 3 Willis-ton, Contr. § 1516; Elliott Supply Co. v. Green, 35 N. D. 641, 160 N. W. 1002; 13 C. J. 371, 372. See also Minneapolis Threshing Mach. Co. v. Huncovsky, 52 N. D. 112, 118, 202 N. W. 280. One who has been guilty of positive fraud in inducing another to refrain from reading a document should not be permitted to excuse his misconduct by the stupidity or credulity of the defrauded party. 3 Williston, Contr. § 1516. If the plaintiffs told the truth fraud was practiced to their injury. The case is not one where this court can say that the testimony of plaintiffs is untrue.

Error is also assigned upon the instructions to the jury. Some of these assignments are not supported by argument; others are related to and covered by what has been said as regards the sufficiency of the evidence.

Appellant also contends that the verdict is in excess of the damages that were proven. This contention is well founded. There is no evidence justifying recovery for any item of damages except for the injury arising from the fact that the tractor was worth less than it would have been worth if it had measured up to the representations and warranties that the plaintiffs claim defendant made as regards it, and which warranties it represented were contained in the written order. The evidence adduced by the plaintiffs is to the effect that if the tractor had been as represented it would have been worth the purchase price agreed upon at the time and place of delivery, namely, $850.00 plus freight or $914.00 in all, but that it was in fact worthless. The undisputed evidence shows that the plaintiffs paid out only $364.00 in cash, and that the defendant still holds the two promissory notes given *90for the balance of the purchase price and aggregating $550. The verdict returned was for $914.00 with interest from the date of the purchase.

It is obvious that the jury allowed the plaintiffs a verdict, not only for the amount that they had paid, but for the amount of the purchase price which they had not paid and for which the defendant held plaintiffs’ notes. These notes were made the basis of a counterclaim, but the counterclaim was in effect disallowed by the verdict of the jury. We are not concerned with the niceties of the particular form that the verdict should have taken. In any view of the case the verdict is erroneous and denied the defendant something to which it was clearly entitled.

Under the evidence the plaintiffs are entitled to recover from the defendant only $364.00 with interest. In a case where a counterclaim is interposed the court should determine the ultimate rights of the parties on each side and render judgment in favor of the one entitled to recover for whatever excess he may be entitled to receive. Comp. Laws, 1913, § 7679. In short, in an action where a counterclaim is interposed and each party has a valid claim against the other, the judgment should fully determine their rights and award a judgment for the excess to the party whose claim exceeds that of the other. The judgment appealed from here awarded the plaintiffs $914.00 with interest. If it had not been challenged by this appeal and had become final it would have constituted a bar so far as defendant’s counterclaim is concerned and plaintiffs could have enforced the same for the full amount awarded. The judgment appealed from must therefore be modified so as to award the plaintiffs a judgment against the defendant only for the sum of $364.00 with interest from March 16, 1927. The modification is of such nature as to entitle the appellant to recover costs and disbursements of this appeal. First Nat. Bank v. Calkins, 16 S. D. 445, 93 N. W. 646; Semple v. Burke, 34 N. D. 152, 157 N. W. 978. And inasmuch as the cost of the first;trial was not occasioned by any fault of the defendant plaintiffs are not entitled to tax and recover costs and disbursements of such trial but are entitled to tax costs and disbursements of the second trial only. Corbett v. Great Northern R. Co. 28 N. D. 136, 150, 148 N. W. 4; Minneapolis Threshing Mach. *91Co. v. Huncovsky, 52 N. D. 112, 119, 202 N. W. 280; Taylor v. Minneapolis St. P. & S. Ste. M. R. Co. 63 N. D. 332, 248 N. W. 268.

The cause is remanded with directions that the district court enter a new judgment conformable to the directions of this opinion. The defendant is entitled to set off the costs and disbursements awarded to it on the former appeal against the damages and costs awarded to the plaintiffs here.

Nuessle, Oh. J., and Burr, Birdzell and Burke, JJ., concur.

Christianson, J.

(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.