Spencer v. Nelson

[62]

WARD, Acting P. J.

The herein for declaratory relief arising out of a controversy as to the legal rights of plaintiff and defendants with respect to a written agreement covering the organization and management of a certain welding equipment corporation. Plaintiff alleges that defendants have caused royalties to be withheld from plaintiff and threaten to ignore the agreement. The answer pleaded lack of consideration and that during a certain period plaintiff occupied the position of attorney toward defendants and that during such period in their legal and business relations he acquired an advantage to the detriment of defendants in the making of the agreement.

The trial court found in favor of defendants and as a conclusion of law it declared that defendants were entitled to a judgment and decree to the effect that the main written instrument and an amendment thereto are both void, invalid and of no legal effect. Judgment was entered accordingly. Subsequently the court ordered “that said plaintiff’s motion for a new trial be and the same is hereby granted on the issue of ratification.” This order was amended by a subsequent order as follows: “. . . it is now ordered by the Court that said minute order be and the same is hereby amended to provide the following, to-wit, that the judgment herein-before entered is vacated and a new trial granted on the issue of ratification.” The notice of appeal designates that the “order vacated the judgment heretofore entered herein and granted plaintiff a new trial only as to the issue of ratification.” A trial court has power to grant a new trial on part of the issues. (Code Civ. Proc., § 657;

Adams

v.

Hildebrand,

51 Cal.App.2d 117 [124 P.2d 80];

Crandall

v.

McGrath,

51 Cal.App.2d 438 [124 P.2d 858].)

The written agreement involved is dated September 5, 1942. All matters preliminary to or occurring on September 5, 1942, up to the precise time that the contract and an amendment thereto were executed and delivered, comprise a definite period upon which all issues pertaining to the validity of the agreement may be determined. The acts performed or statements made by the parties, particularly the defendants, subsequent to September 5, 1942, are matters that may be considered in determining ratification. The question whether the evidence supports the foregoing findings is not before this court. The question here is the propriety of a new trial on the issue of ratification. In examining the