Lemont v. Thayer ( 1917 )

GATES, P. J.

Action for damages for deceit in regard to the title to certain lands 'sold1 by defendant- as' -agent for another to- plaintiff. Verdict and judgment were for defendant. Erom an order granting a new trial, defendant appeals.

[ 11 The evidence tended to show that defendant had paid' over to his principal all of the purchase money received' from plaintiff, except $160; before he discovered that the- representalions -his principal ted made to him and which he had communicated to plaintiff were false. Of this sum $40 was to go to another agent and defendant was to retain $120 for his commission. The tidal court instructed the jury that as tO' 'the money not paid over at the ¡time of the discovery of the fraud the defend-' ant would be under obligations to restore it to plaintiff. The violation of this instruction was a sufficient ground for'. granting the new trial without regard to the other reasons urged by the plaintiff in his motion for a new trial.’ Counsel for appellant insists that such instruction was erroneous, and that the recovery of the withheld money’ could not be had in this action. We think counsel are clearly in error. Because suit was brought for the whole loaf is no reason for denying judgment for a slice. Because plaintiff was of the opinion that defendant knew of the falsity of the representations at the time they were made and brought this action on that theory, there is no1 reason for denying him relief in this action as to the withheld money and compelling him to' bring another action to recover it, even though' itdeveloped that defendant did not know of the fraud at the time be made the representations. It may be entirely true that defehdant was not guilty of deceit; yet when he discovered the deceit it was his duty to pay to the deceived the money be still had on hand, and it would be farcical to compel plaintiff to bring another action therefor. We think the trial court did not abuse its discretion in granting a new trial.

[2] There is another matter that seems to be misunderstood by counsel for appellate He has assigned as error, and properly so, the granting of the new trial. He has, however, also assigned as error the denial of bis motion for a directed verdict at the close of plaintiff’s evidence and at the close of all the evidence and Ithe giving of an instruction. These three matters are not before us and are not proper -assignments of error in view of the situation. Where a new trial is! granted, the only assignment of error available to the appellant in this Court is that the trial court erred in 'granting a' new trial, specifying the reasons,, and the correctness of the ruling of the trial Court is to be determined upon the specifications of error as contained in the settled record.

The 'order appealed from is affirmed.