Shanklin v. Hall

Garoutte, J. This is an action to recover for services rendered in the exchange of certain real estate. Judgment went for plaintiff, a motion for a new trial was made and granted, and this appeal is prosecuted from the order granting a new trial. The case was tried by the court, and the new trial w*as granted upon the ground that “ the decision was against law.” The court made the following findings of fact: “ That on the seventeenth day of April, 1890, the plaintiff and defendant entered into an oral agreement, whereby it was agreed between them that plaintiff should use his knowledge and influence on behalf of, and render his services to, defendant to enable him to sell or exchange the lands mentioned in the amended complaint herein, for which plaintiff was to be paid by the defendant the sum of [28]four hundred and fifty dollars as soon as the sale or exchange was effected through his, the plaintiff’s, knowledge, influence, or services rendered to him, the defendant.” The court further found that the plaintiff rendered his services as agreed, and that a transfer of the land was made by virtue of such services of plaintiff

The findings are directly in line with the allegations of the complaint, and the court concluded therefrom that plaintiff was entitled to recover. We think the conclusion of law arrived at by the court erroneous, and that an appeal from the judgment would have resulted in its reversal for that reason. But a motion for a new trial was granted, upon the ground that the decision was against law. It may be conceded from the authorities'in this state that “the decision is not against law,” when the conclusions of law are not supported by the findings, and that such an error of the court should be reviewed by a direct appeal from the judgment; yet if the order granting the new trial can be justified upon the grounds of error in law occurring during the progress of the trial, it should be affirmed. (Kauffman v. Maier, 94 Cal. 269.) If such were not the rule the moving party would be deprived of his rights to a new trial merely because the grounds upon which the order was made were not sound. Such an injustice is not tolerated by the courts.

2. Upon the trial the defendant objected to oral evidence of tiie express contract alleged in the complaint, on the ground that the sixth division of section 1624 of the Civil Code requires such contract, or some note or memorandum thereof, to be in writing and subscribed by the party to be charged, or by his agent; and, therefore, that oral testimony was incompetent. The court overruled the objection, and admitted testimony of an oral contract, to which defendant excepted. This matter was material, and as the decision of it, if erroneous, was prejudicial to the appellant, he is entitled to have the question considered, and the decision of it reviewed