Civil No. 1178. Third Appellate District. December 30, 1913. MARY A. FRITZ, Plaintiff, Appellant and Respondent, v. LAURA J. E. MILLS and FREDERICK J. MILLS, Defendants, Appellants and Respondents.

[1] NEW TRIAL-PART OF ISSUES-POWER OF COURT.-A court may order a new trial as to a part of the issues leaving the decision in force as to the remainder.

[2] ID. ORDER GRANTING NEW TRIAL-GROUNDS-EXCLUSION OF INSUFFICIENCY OF EVIDENCE.-The court may exclude the alleged insufficiency of the evidence as one of the grounds for granting a new trial when it is expressly so declared in its order.

[3] ID. ID. LIMITATION TO SINGLE GROUND EFFECT UPON APPEAL. -Where the order is expressly limited to a single ground, it does rot exclude from review an appeal on any of the grounds upon which the new trial was asked, except that of the insufficiency of conflicting evidence to support the verdict or decision.

[4] ID.-ORDER GRANTING NEW TRIAL-SINGLE GROUND-MOTION ON SEVERAL GROUNDS-REVIEW OF FINDINGS.-Upon an appeal from an order granting a new trial on a single ground, the findings on the issues raised by the pleadings are not excluded from review, where the motion is made upon several grounds including that the decision is against law.

[5] ID. FINDINGS REFERENCE TO PLEADINGS-UNTRUTH OF CONTROVERTED ALLEGATIONS-AFFIRMATIVE DEFENSES-INSUFFICIENT FINDING. A finding that all of the allegations contained in the supplemental complaint of the plaintiff, in so far as. such allegations are controverted by the answer of the defendants thereto are untrue, is insufficient, where such answer consists not only of denials but of matters constituting separate defenses.

[6] ID.-CASE AT BAR-ORDER GRANTING NEW TRIAL-REVERSAL OF JUDGMENT INSUFFICIENT FINDINGS.-It is held on this appeal from an order granting a new trial that the judgment should be reversed for the reason that it is not supported by sufficient findings, and that the purported limitation of the order should be eliminated and the cause remanded for a new trial on all the issues.

Appeal from the Superior Court of the City and County of San Francisco Frank J. Murasky, Judge.

For Defendants-F. H. Dam.

For Plaintiff-Charles Wesley Reed; Chas. J. Heggerty of Counsel.

The action is for the specific performance of a written contract for the sale of a certain lot and dwelling-house thereon, situated in the city of San Francisco, and is dated April 9, 1906. The contract is as follows: "Received from C. W. Reed, the sum of One hundred and fifty dollars, being deposit on account of sixty-one hundred and fifty dollars, U. S. gold coin, the purchase price of the property this day sold to him, (describing it.) Conditions of purchase $1150 cash, balance of purchase price on mortgage now existing with the Mechanics Building and Loan Association and 25 shares of stock in said association to be transferred to said C. W. Reed, mortgage to be $5000 net. Terms of sale, 30 days are allowed to examine title and consummate sale, at the termination of said time, the balance of said purchase money is due and payable upon tender of the deed of the property sold." Thirty days were given to cure defects in title and if not then cured the de

posit was to be returned and "if the sale is not consummated in accordance with the foregoing conditions, the deposit is to be forfeited. Time is of the essence of this contract.

"Center & Spader by C. N. Gompertz.

"C. W. Reed hereby agrees to purchase the above described property and to comply with all the conditions herein contained. "C. W. Reed."

The action was originally commenced by Charles Wesley Reed, the purchaser, complaint filed October 31, 1906. On May 19, 1908, Mary A. Fritz was substituted as plaintiff by virtue of Reed's transfer of his interest in the cause of action to her. She will be referred to as the plaintiff. Defendant Frederick Mills has no interest in the action and was made a party because the husband of Laura Mills and she will be referred to as the defendant. In her answer to the original complaint defendant denied that she, through her agents, or otherwise or at all, ever executed the agreement set out in the complaint, or any agreement to sell said premises or any part thereof.

At the first trial the court found that defendant did not, through her agents or otherwise or at all, execute the said agreement or any agreement to sell said premises, "but that said defendant is nevertheless estopped, for the purposes of this atcion, to deny that she did" execute said agreement. An appeal was taken and was decided by the district court of appeal for the first district on December 3, 1909, reversing the judgment, because of certain fatal defects in the complaint but mainly on the ground that no estoppel was pleaded and the finding was outside the issues. (12 Cal. App. R. 113.)

The second trial, now under review, as appears from the record, was upon a supplemental complaint, a third amended complaint and the answers thereto, including certain separate defenses set up in the answer to the third amended complaint. The court made findings in favor of defendant and entered judgment accordingly, on November 8, 1911, from which latter plaintiff gave notice of appeal. Subsequently, to-wit, on July 12, 1912, the court made an order granting plaintiff's motion for a new trial.

There are three appeals, by stipulation to be heard upon a single record, consisting of three separate volumes: 1. There is an appeal by plaintiff from the judgment, taken within sixty days (supported by judgment roll, vol. I, and by reporter's transcript, vol. II); 2. An appeal by defendant from the order; 3. An appeal by plaintiff from part of the order (supported by supplemental transcript, vol. III.)

The findings of fact and conclusions of law and the order granting the new trial are as follows:

"I. The court finds that all of the allegations contained in the third amended complaint of the plaintiff, in so far as such allegations are controverted by the answer of the defendants thereto, are and that each and every of them is unsupported by the

evidence and untrue. The court finds that all of the denials and allegations contained in the answer of the defendants to said third amended complaint are and that each and every of them is supported by the evidence and true; except, however, that the court makes no finding with respect to the allegations, or any of them, contained in said answer under the heading of 'Further Answering (A)', concerning the value of the real property described in said complaint, or with respect to the allegations, or any of them, contained in the 3rd or 4th separate defenses stated in said

answer.

"II. The court finds that all of the allegations contained in the supplemental complaint of the plaintiff, in so far as such alle gations are controverted by the answer of the defendants thereto, are and that each and every of them is unsupported by the evidence and untrue. The court finds that all of the denials and allegations contained in the answer of the defendants to said supplemental complaint are and that each and every of them is supported by the evidence and true; except, however, that the court makes no finding with respect to the allegation contained in said answer to the effect that the plaintiff executed and delivered to the clerk of this court a certain alleged written agreement therein set forth, dated August 5, 1908, or with respect to the allegations, or any of them, contained in the 2d, 3d, 4th or 5th separate defenses stated in said answer to said supplemental complaint."

As conclusions of law the court finds that plaintiff should deliver to defendant that certain deed referred to in the supplemental complaint of plaintiff, executed on July 14, 1908, by the clerk of the court to plaintiff, conveying the premises described in the third amended complaint and that the same be cancelled as void; that defendant is entitled to the immediate possession of the premises and that the necessary writs and processes be made to put defendant into possession; that plaintiff have no relief whatever. The judgment was entered accordingly.

The order granting a new trial is as follows: "In this action, the motion for a new trial having been heretofore submitted to the court for consideration and decision, now, the court having considered the same and being fully advised in the premises, it is ordered by the court that said motion for new trial be, and the same is hereby granted, solely upon the ground that in the opinion of the court the payment of the mortgage by Reed was not a voluntary one and that plaintiff is entitled to relief on account of such payment; but in so far as the motion for a new trial is based upon the alleged insufficiency of the evidence to justify the findings of fact, or any of them, respecting the third amended complaint and the answer thereto, the motion for a new trial is hereby denied."

Plaintiff's supplemental complaint was filed October 22, 1910. It alleged the transfer of the cause of action stated in the complaint to Mary A. Fritz and her substitution as plaintiff, May 19, 1908; that at the time the action was commenced the said premises were subject to a mortgage to the Mechanics Building and Loan

Association to secure the payment of a certain promissory note executed by defendants to said corporation in the principal sum of $5,000, bearing monthly interest in the sum of $35.83, which said interest was paid by defendants to February 27, 1907, but no further; that, on October 24, 1907, said corporation commenced an action in said court to foreclose said mortgage; that said 25 shares of the stock of said corporation were by it canceled upon commencement of said suit and were of the value of $78; that, on May 18, 1908, this plaintiff, Mary Fritz, in open court tendered and deposited with the clerk the sum of $6,988.99, "to cover the amount which might be decreed by the judgment herein to be due from and payable by plaintiff upon receiving conveyance of said land, and thereafter the court found on the 19th day of

May, 1908. that it would be equitable for plaintiff to pay over and deposit with the clerk of this court the following amounts: (1) The sum of six thousand dollars. (2) An amount equal in the aggregate to thirty-six and 83/100 dollars per month from the 9th day of April, 1906, to the date of such payment to said clerk. (3) The sum of eighty-two and 50/100 dollars heretofore paid by defendant Laura J. E. Mills as premium on insurance policies"; that thereafter, on May 29, 1908, the court made additional finding, that plaintiff owed defendant, on May 18, 1908, the sum of $6,842.34, made up of items stated in the findings; that, on July 14, 1908, the defendant having failed to deposit with the clerk the deed required by the final decree "and there being no stay of execution", the clerk of said court executed and delivered to plaintiff, “pursuant to said final decree", a deed to said premises; that, on August 6, 1908, the city treasurer, "pursuant to the said final decree and the order of this court made herein on or about the 5th day of August, 1908, paid over to said Mechanics Building and Loan Association, out of the moneys so deposited by plaintiff as aforesaid, the sum of $5,707.17, in satisfaction of said mortgage on said premises, and the amount due thereon for principal, interest, costs and counsel fees" (stating the various items); that, owing to damages to the premises caused by an earthquake, on or about April 18, 1906, and to make said premises habitable, "it became necessary for said Charles Wesley Reed to expend and he did expend the sum of $400", in repairs on said dwelling. These alleged transactions, it will be observed, took place while the appeal was pending which resulted in a reversal of the judgment, December 9, 1909.

In her prayer plaintiff asked credit with the payments made in satisfaction of said mortgage and that she "be subrogated to the rights of said mortgage, in case she should not receive a conveyance of said property and that in such event she be reimbursed for the sum expended for repairs on said premises" and for such further relief as may be equitable.

In her answer to plaintiff's supplemental complaint, filed December 16, 1910, defendant denies that it would be equitable for the plaintiff Fritz or any person other than said Reed to pay over to or deposit with said clerk the said sum of money mentioned

in said supplemental complaint, and denies that said clerk executed to plaintiff a deed of said premises otherwise than by the procurement and inducement of plaintiff and with her knowledge and consent; alleges that said final decree provided that such deed was to be executed only upon certain specified conditions one of which was that defendant should execute and deliver to the said clerk a satisfaction of the judgment herein rendered and that defendant did not then or at any subsequent time deliver to said clerk a satisfaction of said judgment; denies that said moneys were paid over to said loan association pursuant to said final decree but that the same were paid to said association upon an order of court procured by plaintiff and said Reed, her then attorney, and by the procurement and inducement of plaintiff; alleges that plaintiff caused to be paid to her all the money deposited as aforesaid except such part as had been disposed of under the said procurement of plaintiff; denies that it became necessary to expend the sums or any sums for said alleged repair of said building.

As a separate defense, defendant alleges that in due time defendant appealed to the supreme court from the judgment referred to in the supplemental complaint, which said judgment was, on reference of the case to the district court of appeal, reversed and remittitur was duly issued, February 10, 1910. Sections 337, 338, 339 and 343 of the Code of Civil Procedure are pleaded in bar of the action. Defendant prays that said deed, executed by said clerk, be canceled and for further relief.

The third amended complaint sets forth a detailed history of the transaction and ensuing litigation and prays that defendant be decreed to execute to plaintiff a deed to said premises.

The answer of defendant traverses many of the averments of this complaint and sets forth in some detail defendant's connection with the transaction and explains her position in relation thereto; alleges the value of the property; alleges that Reed went into possession of the premises without authority and sets forth the correspondence in relation thereto; pleads sundry facts in four separate defenses, calling attention to the letters and telegrams passing between the parties and particularly to the conditions following the fire and earthquake of April, 1906, and their influence upon the said Reed in abandoning the contract and his subsequent attempt to put it in force upon a revival of business and consequent restoration of values of real property; sets forth facts showing that defendant disavowed the contract and the alleged authority of the persons acting as her agents; also pleads the statute of limitations.

The grounds of the motion for a new trial were: Insufficiency of the evidence to justify the decision; that the decision is against law; errors in law occurring at the trial. The court granted the motion "solely upon the ground that in the opinion of the court the payment of the mortgage by Reed was not a voluntary one and that plaintiff is entitled to relief on account of such payment". The court denied the motion in so far as the motion "is based upon the alleged insufficiency of the evidence to justify the