Long v. Newlin

WHITE, P. J.

This is an action upon a common count for money had and received. It was instituted to recover the sum of $40,000 allegedly had and received by defendants for the use of J. F. Burke, plaintiff’s assignor. By their answers defendants denied any indebtedness to plaintiff or his assignor.

The cause was tried upon the theory that defendants by false and fraudulent representations obtained from J. F. Burke the sum of $36,276.55 to form a partnership or joint venture to promote a certain tool, made to wash perforations and to wash out sand from behind perforations in oil wells, thereby increasing their production. That upon discovering the alleged falsity of the representations, plaintiffs’ assignor rescinded the transaction. The cause proceeded to trial before the court sitting without a jury, resulting in a judgment for plaintiff in the sum of $36,276.55. Each defendant moved for a new trial, which motions were granted through entry by the court of the following order: “the motion of defendant Rhae E. Foust for a new trial herein, and the motion of defendants George E. Newlin and J. C. Theriot for a New Trial herein heretofore submitted July 22, 1955,

are granted upon the grounds of insufficiency of the evidence to show that it was not necessary to have an

accounting.”

From such order plaintiff prosecutes this appeal.

We deem it unnecessary to narrate in detail the factual background surrounding this litigation because the sole question presented to us on this appeal is whether it was necessary to have an accounting of the business before plaintiff could recover. If it was then the motions for a new trial were properly granted. Defendants urge that the motions for a new trial having been granted on the ground of insufficiency of the evidence, the order should not be disturbed under the well established rule that a motion for a new trial rests peculiarly within the discretion of the trial court and cannot be disturbed on appeal in the absence of a clear showing of abuse. With that rule we are in thorough accord, but it is not applicable here because the order is expressly limited to

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the ground of insufficiency of the evidence as to the legal necessity for an accounting and will be reversed where it appears from the record that under the law, an accounting between the parties was not required. Such limitation in the order precludes the contention on appeal that the order may have been granted for insufficiency of the evidence to support the findings