The defendant did not prevail upon his answer setting up the settlement. The plaintiff recovered “a greater sum than the sum so offered ” by the tender of judgment. The court will not allow the mere form of the verdict, adopted under its direction for the protection of the defendant, to disguise the real nature of the result, so as to work injustice to the plaintiff. The costs are to depend upon the amount recovered. This is to be determined by the substantial fact, and not merely by the formal verdict. The statute so provides in cases of set off. Gen. Sts. c. 156, §§ 5, 6. So also do the 20th and 21st rules of the superior court, in cases where money is paid into court and taken out by the plaintiff. This rule is in accordance with the manifest intent of the statute, and the rights of parties; and we think the same principle should be applied in all like cases.
It is urged that the application of the payment was made by agreement, and must therefore be taken as so much stricken from the plaintiff’s claim. But, if the arrangement of the ver diet is made to stand upon agreement solely, we think the defendant must also be held, as party to such agreement, to have waived his rights under his tender of judgment.
The decision of the superior court must therefore be reversed and the plaintiff have judgment for his costs.