Rodgers

This action was brought to recover $427.50, alleged to have been paid in excess of the sum due from plaintiff to defendant upon a certain mortgage held by defendant upon the land of plaintiff. The jury rendered a verdict in favor of plaintiff for three hundred dollars, and defendant has appealed from the judgment and an order denying his motion for a new trial.

The allegations of the complaint are, that the defendant had a mortgage upon land of the plaintiff to secure the payment of six thousand dollars, and interest thereon, and about February 21, 1887, defendant commenced an action to foreclose said mortgage; that in May, 1887, while said action was still pending, plaintiff being desirous of terminating said action and saving further costs to himself therein, and of liquidating and discharging his indebtedness to the defendant under said mortgage and said action, offered to pay to the defendant the mortgage money, interest, costs, and counsel fees due and payable thereunder; that all that was then lawfully due to the defendant by reason of the premises was the sum of $4,000, principal, and the sum of $2,127.50, interest, $150 counsel fees, and $25 costs, making in all…