constitute a "proceeding" within the meaning of the statute. We conclude, therefore, that the bill of exceptions was properly settled, and entitled to be considered on the motion for a new trial.

The order granting the motion for a new trial was in general terms, not purporting to exclude any particular ground specified in the notice. One of the grounds specified in the notice was insufficiency of the evidence to justify the decision. If upon the record before us, a new trial could have been properly granted upon that ground, we must assume in favor of the order that it was granted for that reason, regardless of any reason stated in the opinion of the trial court. (See Schnittger v. Rose, 139 Cal. 656, 659, [73 Pac. 449]; Ben Lomond etc. Co. v. Sladky, 141 Cal. 619, 621, [75 Pac. 332]; Weisser v. Southern Pacific Co., 148 Cal. 426, [83 Pac. 439].) "It is the duty of the judge of the trial court to grant the new trial whenever he is not satisfied with the verdict if tried by a jury, or with the findings, if tried by the court; and he is not bound by the rule as to conflicting evidence, as is this court" (Condee v. Gyger, 126 Cal. 546, 547, [59 Pac. 26]; Churchill v. Flournoy, 127 Cal. 355, 362, [59 Pac. 791]). Where the evidence is such that it would have sufficiently supported findings in favor of the party against whom the decision was given, and the trial court grants a motion for new trial made upon various grounds, including that of insufficiency of evidence, without in terms excluding such ground in its order entered on the minutes, we must presume, in favor of such order, "that the court changed its opinion as to the effect of the evidence, and reached a conclusion upon the hearing of the motion, favorable" to the party making the motion (Condee v. Gyger, 126 Cal. 546, 548, [59 Pac. 26]). As a matter of fact, the opinion of the trial judge filed upon the decision of the motion shows that such was the case here. It is the reason given by the learned judge for such change that counsel for appellant vigorously assail.

The real question in dispute between the parties on the issues made by the cross-complaint and the answer thereto was as to whether the transaction between plaintiffs and Wickersham, upon which each party based its action, was one prohibited by the constitutional provision hereinbefore quoted, and therefore void. The specifications of insufficiency of

evidence contained in the bill of exceptions sufficiently assailed the material findings in this regard. In determining the question as to whether the assailed findings were sufficiently supported by the evidence, the trial court undoubtedly had the right to consider all the evidence given upon the trial, including that given on behalf of plaintiffs in support of their claim. That evidence as to the nature of the transaction between the parties was as available to defendant in support of her cross-action involving the same transaction, as it was to plaintiffs in support of their action, and she had a perfect right to rest her claim thereon if she so desired.

Nor do we understand that, as urged by plaintiffs, the trial court, in the determination of the question as to whether the assailed findings were sufficiently supported by the evidence, was required to accept as true certain other findings of probative facts not assailed by specification of insufficiency, which probative facts were not such as to make of the findings assailed mere conclusions of law rather than findings of the ultimate facts. The question as to the sufficiency of the evidence to support the assailed findings is to be determined solely from the admissions of the pleadings and the evidence given upon the trial.

Coming to a consideration of these matters, we find sufficient ground for sustaining the action of the lower court in granting a new trial. The evidence was such as to warrant the trial court in concluding that the facts were in no material respect different from those in Parker v. Otis, 130 Cal. 322, 330, [92 Am. St. Rep. 56, 62 Pac. 571, 927], where the transaction was pronounced to be similar to that involved in Sheehy v. Shinn, 103 Cal. 325, [37 Pac. 393]; Kullman v. Simmens, 104 Cal. 595, [38 Pac. 362], and kindred cases, and therefore prohibited by the constitutional provision. The facts, as briefly stated by this court in that case, were as follows: "Plaintiff paid to defendants certain money, accompanied by an order to purchase certain stocks; defendants went into the stock board, bought and paid for these stocks in full at the market rate; defendants then credited plaintiff with the money paid by him (which was always less than the amount paid for the stocks by defendants, or, in other words, was but a margin of the cost), and by agreement held the stock as security for their commissions, advances, and for the accumu

lating interest thereon, with the power to sell the stocks to protect themselves against a decline in value; defendants did not keep the particular stocks purchased, but had others of like character, and could and would have delivered a like number of shares to plaintiff upon full payment of all balances due at the time upon demand; defendants acted only as agents of plaintiff and had no interest in the stocks beyond their commissions, advances, and the agreed interest." In the case at bar, Wickersham did not pay any portion of the purchase price, but his deposit of the three hundred and fifty shares of stock as collateral security had the same effect, and afforded the necessary margin. (See Cashman v. Root, 89 Cal. 373, 378, 379, [23 Am. St. Rep. 482, 26 Pac. 883, 12 L. R. A. 511].) It is said that plaintiffs here did not have power to sell the stocks at any time to protect themselves against a decline in value, and that therefore one of the essential elements of a sale on margin was absent. We are of the opinion that the evidence was such as to fully warrant the inference that such power to sell was present. Plaintiffs' contention to the contrary is based entirely upon the theory that Wickersham had become the owner of the one thousand shares, and as such owner had delivered the same in pledge, but the evidence was not such as to compel the court to accept such theory. According to the evidence of one of plaintiffs' witnesses, Wickersham had stated to him that after the stock had depreciated he had gone to plaintiffs and told them not to sell him out, and that they had promised that they would not, thus indicating his understanding of their agreement to be that they had the power to sell. There was nothing in the testimony of plaintiffs' witnesses as to statements made by Wickersham to them as to his transaction with plaintiffs, to compel a conclusion contrary to that reached by the court below on the motion for a new trial. The creditors' claim based on this transaction first presented by plaintiffs to defendant's executrix for allowance, verified by the oath of one of the plaintiffs, stated the facts in such a way as to clearly and necessarily bring the transaction within the constitutional prohibition, and this, as we shall presently show, was competent evidence of admission against interest.

Plaintiffs rely on Maurer v. King, 127 Cal. 114, [59 Pac. 270], as establishing that in this case there was no contract

for the delivery of stock at a future day, but we cannot see that the case is in point. In part payment of the purchase price for certain real property, one Smith had delivered to Maurer one thousand shares of the stock of a mining company at fifty cents per share, making five hundred dollars thus paid, and to save Maurer from loss on the stock, guaranteed in writing that it would be worth that sum inside of two years from date, and if Maurer held it for two years and so requested, he, Smith, would take it from him and pay him for it at that rate. This guaranty was upheld. It was said that there was here no contract prohibited by the letter of the constitutional inhibition, nor any attempted evasion thereof, but a simple guaranty that property delivered in payment at a fixed price would be worth that price within two years, and if not worth it that the party delivering it would take it back and pay the amount in cash. It is manifest that the case in no degree assists plaintiffs.

It is not necessary for us on this appeal to go further than to hold that the evidence was such that it would have sufficiently supported findings in favor of defendant upon the question as to the nature of the transaction between plaintiffs and Wickersham. As to this, we have no doubt.

It is earnestly claimed that the creditors' claim first presented by plaintiffs to defendant for allowance was not admissible as evidence of admission against interest on the part of plaintiffs. After the rejection of this claim by defendant, a second claim in different terms was presented, and it was this claim that was in fact relied upon by plaintiffs on the trial of the action. The verified statement as to the nature of the transaction contained in the first claim was undoubtedly opposed to the claim made by plaintiffs on the trial. Ordinarily, where one has made statements opposed to the claim he asserts in an action, these statements are admissible against him as admissions against interest. Their force as admissions may be impaired and perhaps entirely destroyed by explanation of the circumstances under which they were made, but they are admissible, and are to be considered in connection with such explanations as may be made concerning them. We know of no principle under which the claim could be held inadmissible here. Plaintiffs seek to bring the case within the rule established in this state to the effect that where a

party to an action amends a pleading, statements in the superseded pleading cannot be used as admissions against interest on the part of the person making them. (See Mecham v. McKay, 37 Cal. 154, 165; Ponce v. McElvy, 51 Cal. 222; Wheeler v. West, 71 Cal. 126, 128, [11 Pac. 871]; Ralphs v. Hensler, 114 Cal. 196, 198, [45 Pac. 1062]; Miles v. Woodward, 115 Cal. 308, 316, [46 Pac. 1076].) This rule, the soundness of which has been disputed elsewhere (see 2 Wigmore on Evidence, sec. 1067), has never been held applicable except as to statements in a pleading in an action, which have been omitted by amendments made thereto, and we can see no good reason for extending it. Clearly, a creditor's claim against an estate is in no sense of the word a pleading, nor is there any such thing known to our law as the amendment of such a claim. The fact that such a claim must be presented prior to the institution of an action against an estate is entirely immaterial. The case is simply that of one who has presented a bill or demand embodying certain statements as to the facts upon which it is founded, and who subsequently seeks to maintain an action utterly inconsistent with the facts he has heretofore asserted. We can conceive of no good reason why the general rule as to the admissibility of evidence of admissions against interest was not applicable in the case of the claim under discussion.

From what has been said, it follows that the order granting the new trial must be affirmed.

As to the appeal from the judgment.

We are unable to agree with the learned judge of the trial court in his conclusion that there was such a variance between the facts as set forth in the second claim presented against the estate and in the complaint, and the facts proven by plaintiffs and found by the court, as to preclude a recovery.

There was no substantial variance between the facts set forth in the claim and those alleged in the first count of plaintiffs' complaint.

It was alleged therein that Wickersham agreed to repay to plaintiffs the advances made by them in the purchase of said stock, and the usual commissions for the purchase, within ninety days from the date of the agreement, with interest on the amount thereof, from the date of the advance until paid. at the rate of six per cent per annum, and the court found