White

This was an action to foreclose a mortgage given to secure payment of a one-year note, dated November 3, 1880, for $450, with interest at the rate of one and one half per cent per month of thirty days, payable at maturity of note, and if not so paid, to become part of the principal and draw like interest.

The defendant, in his answer, in addition to a general denial, set up that he executed the note and mortgage solely in consideration of the promise of plaintiff to pay him the amount of the note; that plaintiff only paid him $250 of the amount, and refused to pay the remainder. And as a counterclaim he averred that plaintiff was indebted to him in the sum of $1,831.69 as a balance due on an account for goods, etc., money paid out to plaintiff’s use, and for labor, all furnished, done, and performed at the request of plaintiff.

The case was tried by the court, without a jury, upon all the issues except one, which was submitted to a jury in the following stipulated form:—

“ Is the plaintiff indebted to the defendant upon the counterclaim set up in defendant’s answer; and if so, how much?” To which the jury responded: “Yes; one thousand dollars.”

This special verdict was…