Dewey v. Frank Bros. & Co.

Appeal by plaintiff from an order of the Superior Court of the County of Los Angeles granting a new trial. Howard, J.

Action on account stated. On the trial the plaintiff testified that before the commencement of the action, one A. S. Frank, an agent of the defendants, presented to him at Los Angeles an account stated between the defendants and the plaintiff showing an indebtedness from defendants to him, the plaintiff, and then and there promised that the defendants would pay it. A. S. Frank at the time of the trial was absent from the State. Judgment was given in favor of the plaintiff. Defendants moved for a new trial on, among other grounds, “surprise which ordinary prudence could not have guarded against.” On the hearing of the motion the affidavit of A. S. Frank was offered and considered. In it he denied that the account was ever intended as an account stated, or that he ever promised the plaintiff that the defendants would pay the plaintiff any sum whatever, and deposed that instead of the defendants owing the plaintiff, he, the plaintiff, owed the defendants a large balance, and at the time referred to the plaintiff promised and endeavored to close the account by giving his note with other security to the defendants. The Court below granted the motion of defendants for a new trial, basing its action on the ground of the surprise claimed. This case on appeal was first heard in Department Two of this Court. As the decision of the Department is referred to in the opinion of the Court in bank, the opinion in Department is here given “in extenso.”

“In this cause judgment passed for plaintiff. Defendants moved for a new trial on several grounds, among which was surprise which ordinary prudence could not have guarded against, insufficiency of the evidence to justify the decision, and errors of law, occurring at the trial and excepted to by the defendants. This motion was granted on the ground of surprise. The plaintiff appeals from this order.

“We have examined the questions as to surprise, and are of opinion that there was no surprise in its legal meaning. The Court was not then justified in the exercise of a proper discretion in granting a new trial.

“If the order could he sustained on any of the other grounds on which defendants moved, we would affirm it. We have examined them, and do not think they justify an affirmance of the order. It is proper to add that as to the failure of the Court below to rule on the admissibility of certain' correspondence offered by defendants and objected to by plaintiff, the ruling on which was reserved by the Court until the evidence was closed, we are of opinion that the point is not before us for decision. This was an irregularity in the proceedings of the Court, and the defendants did not move on that ground. It seems to have been treated as an error of law. If it is an error of law it could only be brought before the Court on affidavit. (C. 0. P., § 658.) It was not, however, an error of law occurring at the trial and excepted to by the moving party, for the record shows no exception.