Opinion
Department One
Appeal from an order of the Superior Court of the city and county of San Francisco granting a new trial.
COUNSEL:
Olney, Chickering & Thomas, for Appellant.
T. Z. Blakeman, for Respondent.
JUDGES: Belcher, C. C. Hayne, C., and Foote, C., concurred.
OPINION
BELCHER, Judge
This action was brought to foreclose a lien for materials furnished by plaintiff and used in the construction of defendant's cable railroad. The complaint alleged that the materials were sold and delivered by plaintiff to defendant. The answer denied this, and alleged that the road was constructed by one Fazackerley, under a contract by which he, for an agreed price, was to and did perform all the labor and furnish all the materials necessary therefor at his own cost and expense. The findings and judgment were in favor of defendant; a new trial was asked for and granted, and the appeal is from that order.
The motion for a new trial was based upon the alleged insufficiency of the evidence to justify the decision, and upon errors in law occurring at the trial, but it does not appear upon what ground it was granted.
We think the order must be affirmed. It is settled law in this state that motions for new trial on the ground of the insufficiency of the evidence to justify the decision are addressed to the sound legal discretion of the trial court, and that when such motions are granted the orders will not be reversed on appeal unless it clearly appears that there was an abuse of discretion. (Phelps v. Union C. M. Co ., 39 Cal. 410; Pierce v. Schaden , 55 Cal. 406; Pico v. Cohn , 67 Cal. 258; Breckenridge v. Crocker , 68 Cal. 403.)
We see no manifest abuse of discretion here. Without stating particularly what was proved, we think it enough to say that there was evidence tending to sustain the plaintiff's contention. In view of this evidence, the court may have thought that it erred in making its findings, and that the ends of justice would be promoted by a new trial.
We advise that the order appealed from be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the order appealed from is affirmed.