S. L. DEWEY v. FRANK BROS. & CO., 62 Cal. 343

The Court : This case was heard in Department Two of this Court, and a decision was rendered July 28, 1882. (9 Pac. C. L. J. 813.) Subsequently a hearing by the Court ha bank was granted, which hearing has been had. We have examined the transcript and the points made, and are satisfied with the decision of the Department. As the new trial was granted on the ground of surprise, we must take the findings, so far as there is evidence to support them, as true on all questions of fact found thereby.

Where a new trial is granted upon a stated ground, we can not, in searching for other grounds for sustaining the order, consider the facts as other than found, if there be evidence to support the findings. Otherwise, we should be speculating upon what might have been the decision as to the facts rather than relying upon what was the decision. As stated in the opinion of the Department, there was no surprise in its legal meaning for which a new trial should have been granted.

The defendants were informed at the commencement of the suit, March 10,1880, that the action was brought to recover a balance alleged to be due on an account stated. They knew before that day that their agent, Mr. A. S. Frank, had been sent by them to the plaintiff to make some adjustment of the affairs between them and the plaintiff. They knew that the mission of A. S. Frank and its result might be of importance, and might be used by plaintiff in making out his case.

They had at the trial on the eighteenth of December, 1880, the testimony of the plaintiff as to the result of the mission, and made no motion for a continuance, nor expressed any surprise other than such as would arise from evidence contrary to their own version of the facts. The case was then argued and submitted, and decided February 28, 1881. Not till after the decision did they present the view of surprise; and we think it was then-disappointment rather than surprise; therefore, the Department was correct in saying there was no surprise in its legal meaning. See

Section 657, C. C. P.: “ Surprise, which ordinary prudence could not have guarded against.” The order is reversed, and the cause is remanded. Ross, J., dissented.