Winter v. Neuman

French, J. Plaintiff brought action on a promissory note, asking for the recovery of seven hundred dollars, costs, and attorney’s fees. Defendants answered, alleging that the promissory note was given as the balance of the purchase price of a boat; and by way of affirmative defense, alleged that the plaintiff had represented, warranted, and guaranteed that the boat and hull were seaworthy and in first class condition, and further alleged that, by reason of the breach of warranty, the defendants were damaged. The cause came on for trial before the court without a jury. Certain trial amendments were proposed by the defendants; evidence was admitted, a considerable portion of which seems to have been admitted over the objection of plaintiff. The lower court took the case under advisement, and thereafter rendered judgment for plaintiff for the amount sued for. Motion for a new trial was made by the defendants, the grounds of the motion being as follows: *288 “(1) Irregularity in the proceedings of the court and abuse of discretion by which defendants were prevented from having a fair trial. “(2) Accident and surprise which ordinary prudence could not have guarded against. “(3) Error in the assessment in the amount of recovery in that the same was too large.- < < “ (4) Insufficiency of the evidence to justify the decision and that the same is against law. “(5) Error in law occurring at the trial and excepted to at the time by the defendants.” The order granting a new trial,, omitting formal parts, is as follows: ,. “Ordered, That the motion of the defendants for a new trial be and the same hereby is granted, and that the judgment in the above entitled cause be and the same hereby is set aside and held for naught and that the above entitled cause stand for trial in the usual course, unless the plaintiff should elect to have a special setting, whereupon the said cause will be specially set for hearing.” This is an appeal from the order granting a new trial. An examination of the statement of facts shows a substantial conflict in the evidence. This court has held, in an unbroken line of decisions, that, where a new trial is granted upon general grounds, as in this case, we will not disturb such order. Angus v. Wamba, 50 Wash. 353, 97 Pac. 246; Austrem v. American Savings Bank & Trust Co., 122 Wash. 399, 210 Pac. 781; Sutherland v. Northern Pacific R. Co., 124 Wash. 413, 214 Pac. 823; Alberts v. Rasher, Kingman, Herrin, 128 Wash. 32, 221 Pac. 975; Adams v. Olson, 132 Wash. 129, 232 Pac. 361; Scott v. McAnally, 135 Wash. 231, 237 Pac. 292. Judgment affirmed. Mitchell, Askren, Tolman, and Parker, JJ., concur.