Briggs

This is an appeal from an order granting defendant’s motion for a new trial. The action was brought to recover an agent’s commission for the sale of real property. The jury found in favor of plaintiff and the court awarded a new trial, making the following order: “In this action a new trial is ordered upon the ground that instruction number six as well as other instructions to the same point is not covered by the issues raised in the pleadings. It was also error of the court to admit evidence on that point but the court was of the opinion when it admitted the evidence and gave the instructions that there was a count in the complaint that permitted it so to do.”

It has been said that “it is only in rare instances and upon very strong grounds that the supreme court will set aside an order granting a new trial.” (Quinn v. Kenyon, 22 Cal. 82 .)

It is also true, as stated in Morgan v. Robinson Co., 157 Cal. 352 , [107 Pac. 697 ], that “Even though the order declare in terms that the motion is granted for one or more reasons only, the appellate court is not precluded from considering any other assignment upon which the motion should have been granted. (Kauffman v. Maier, 94 Cal. 269 ,…