tended to be secured by it was the balance due of the purchase-money of all the property included in the mortgage, which embraced other property than the upholstery and furniture used in the hotel. Judgment and order reversed, and cause remanded. DEPARTMENT No. 1. [Filed April 20, 1883.] KNOWLES, RESPONDENT, v. SEALE, APPELLANT. CISCO. STREET ASSESSMENT-GRADE-CLEMENTINA STREET-FINDING-SAN FRANAction to foreclose a lien for replanking the northerly half of Clementina street, San Francisco, from First street to a point 150 feet westerly therefrom. One of the issues raised was that the street was not graded, and on appeal it was contended there was no finding on such issue. The Court found that "the replanking mentioned in the complaint was placed to the official grade," and "that in order to plank to the official grade, the contractor filled the said portion of Clementina street, varying in depth from zero at the crossing to one foot at the end of 150 feet." Held, the inference necessarily deducible from these facts is that the street was graded, and the findings cover the issue-citing Coveny v. Hale, 49 Cal. 552. Appeal from Superior Court, San Francisco. Stewart, Van Clief & Herron for appellant. This was an action for the foreclosure of an assessment lien, for the replanking the northerly half of Clementina street, from First street to a point 150 feet westerly therefrom, in the city and county of San Francisco, under a contract made by the Superintendent of Public Streets, and the assignor of the plaintiff. One of the issues raised by the pleadings was, that Clementina street was not and never had been graded, and the only contention is, that the Court below, in its findings, did not pass upon that issue. But the Court found, "That the replanking mentioned in the complaint was placed to the official grade," and "that in order to plank to the official grade, the contractor filled the said portion of Clementina street, varying in depth from zero at the crossing, to one foot at the end of 150 feet." The inference necessarily deducible from these facts is that the street was graded, and the findings cover the issue. (Coveny v. Hale, 49 Cal. 552.) Judgment affirmed. DEPARTMENT No. 1. [Filed April 24, 1883.] BLUM, APPELLANT, v. SUNOL ET AL., RESPONDENTS. NEW TRIAL COURT-SUCCESSOR-APPEAL. Although an order granting a new trial is made by the successor of the trial Court, or rather by another Judge than the one who tried the cause, every intendment is in favor of its correctness. ID.-DOCUMENTARY EVIDENCE-DEPOSITION. Where a finding has been made upon a conflict of evidence, or contrary to evidence, or without evidence, the appellate Court does not interfere with the action of the lower Court in granting a new trial, although the evidence upon which it has acted may consist of depositions and documentary and oral evidence. Appeal from Superior Court, San Francisco. B. S. Brooks for appellant. E. J. Pringle for respondents. MCKEE, J., delivered the opinion of the Court: The action in this case was tried and decided by the late District Court of Contra Costa County. After decision and judgment a motion was made for a new trial upon a bill of exceptions. Before the motion was heard the attorney for the plaintiff, having been elected Judge of the Superior Court of the county, became disqualified from acting in the case, and the action was removed and transferred to the Superior Court the of city and county of San Francisco. There the motion was argued and submitted, and after a review of the evidence contained in the certified bill of exceptions, the Court sustained the motion and ordered a new trial, and from the order this appeal has been taken. Although the order was made by the successor of the trial Court, or rather by another Judge than the one who tried the cause, yet as every intendment prevails in favor of its correctness, the appellant is bound to overcome such intendments by affirmatively showing prejudicial error. No such error has been made to appear. The issue tried involved the genuineness of certain instruments in writing, through which defendants claimed title to the real property in controversy in the case. Upon those issues much documentary and oral evidence was given by both parties; and, from an examination of the evidence contained in the record, we are of opinion there was no abuse of discretion by the Court below in granting a new trial. Where a finding has been made upon a conflict of evidence, or contrary to evidence, or without evidence, this Court does not interfere with the action of the lower Court in granting a new trial, although the evidence upon which it has acted may consist, as it does in this case, of depositions and documentary and oral evidence. (Canning v. C. P. R. R. Co., 59 Cal. 166; Parrot v. Floyd, 54 id. 534; Macy v. Davilla, 48 id. 646; Altschul v. Doyle, 48 id. 535.) Order affirmed. We concur: McKinstry, J., Ross, J. IN BANK. [Filed April 21, 1883.] SAVAGE, RESPONDENT, v. SWEENEY, APPELLANT. NEW TRIAL-APPEAL. Plaintiff moved for a new trial on the ground, inter alia, that the evidence was insufficient to justify the decision. The motion was granted. On appeal held, it not appearing upon what grounds the motion was granted, as every intendment must be indulged to sustain the judgment of the Court below, it will be presumed the motion was granted for insufficiency of the evidence to sustain the decision. Further, no abuse of discretion appears in the case. Appeal from District Court, San Francisco. Jarboe & Harrison for appellant. R. R. Provines for respondent. By the COURT: This action was tried by the Court, and the decision was in favor of plaintiff. The plaintiff, nevertheless, moved for a new trial on the ground, inter alia, that the evidence was insufficient to justify the decision. The Court granted the motion, and from this order the defendant appealed. It does not appear upon what grounds the new trial was granted, and, therefore, as every intendment must be indulged to sustain the judgment of the Court below, this Court is authorized to presume that it was granted on the insufficiency of the evidence to sustain the decision. In relation to this, it is the well-settled rule of this Court that such motion for a new trial is addressed to the sound discretion of the Court, and an order granting it will not be disturbed unless it appears that the Court below has abused its discretion in so ruling. (Pierce v. Schaden, 55 Cal. 406; Bronner v. Wetzlar, id. 419, and cases cited.) No such abuse appears in this cause, and the order is affirmed. DEPARTMENT No. 1. [Filed April 20, 1883.J CASTAGNINO, RESPONDENT, v. BALLETA ET AL., APPELLANTS. BUILDING CONTRACT. On authority of Loup v. Cal. S. R. R. Co. (10 Pac. C. L. J. 699), judgment and order reversed. Appeal from Superior Court, San Francisco. H. J. Tilden for appellants. M. C. Hassett for respondent. By the COURT: On the authority of Loup v. The California Southern R. R. Co. (10 Pac. C. L. J. 699), judgment and order reversed, and cause remanded for a new trial. DEPARTMENT No. 2. [Filed April 21, 1883.] NAUD, APPELLANT, v. THE TRAVELERS' INSURANCE CO., RESPONDENT. INSURANCE-ERROR-NONSUIT. Action on an insurance policy. Judgment of nonsuit rendered below. Held, no error was committed as to admissibility of evidence, nor in granting a nonsuit on plaintiff's opening. Appeal from Superior Court, Los Angeles County. Howard and Bicknell & White for respondent. By the COURT (THORNTON, SHARPSTEIN and MYRICK, JJ.): The Court below committed no error in its ruling as to the admissibility of evidence. The plaintiff was nonsuited, and to this an exception was reserved. We have examined the testimony offered by plaintiff in her opening and find no error in the ruling of the Court on the motion for a nonsuit. Judgment affirmed. DEPARTMENT No. 1. [Filed May 8, 1883.] CONGDON, APPELLANT, v. CHAPMAN, RESPONDENT. CONTRACT-STOCK-SALE. Plaintiff sold to the defendant certain shares of the capital stock of a mining company, upon defendant's agreement to pay for the stock, at a stated rate per share, from the first moneys which can be realized from the sale of any stock of said company owned or controlled by him (Chapman), and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him, without unnecessary delay, to the end that said payment may be made to said Congdon." Held, by this agreement the parties clearly expressed their intention that the stock should be paid for out of the first moneys that could be realized from the sale of any stock of the company owned or controlled by Chapman; the latter further agreeing to use all reasonable efforts to realize on the stock, without unnecessary delay, to the end that said payment may be made to said Congdon. ID.-ID. After trial, the Court below found that the defendant used reasonable diligence, and made all reasonable efforts to sell the stock, but had been unable to sell any of it. Under such circumstances, to hold the defendant liable in this form of action would be to make and enforce between the parties a contract essentially different from the contract that they themselves made and from that declared on. Appeal from Superior Court, San Francisco. Cary & Troutt for appellant. Pillsbury & Titus for respondent. By the COURT: The plaintiff sold to the defendant certain shares of the capital stock of the Erie Consolidated Mining Company, upon defendant's agreement to pay for the stock, at a stated rate per share, "from the first moneys which can be realized from the sale of any stock of said company, owned or controlled by him (Chapman), * * * and said Chapman agrees to use all reasonable efforts to realize on the stock of said company owned or controlled by him, without unnecessary delay, to the end that said payment may be made to said Congdon.' By this agreement the parties clearly expressed their intention that the stock should be paid for out of the first moneys that could be realized from the sale of any stock of the company owned or controlled by Chapman; the latter further agreeing to use all reasonable efforts to realize on the stock, without unnecessary delay, "to the end that said payment may be made to said Congdon." |