Burgess

The plaintiff commenced an aetion in unlawful detainer against the defendant. The defendant appeared and answered. A trial was had before the trial court sitting with a jury. The jury returned a general verdict in favor of the defendant. The plaintiff moved for a new trial. The motion was based on all of the statutory grounds except as to excessive damages. The trial court granted the motion and in its order it did not specify on which of the grounds of the motion it based its order. The defendant appealed under section 953a of the Code of Civil Procedure.

The defendant makes several points which are not controverted by the plaintiff, but in support of the order the plaintiff calls to our attention the condition of the record and contends that the trial court did not err in granting the motion. In this connection we think the plaintiff must be sustained.

In the defendant’s answer an equitable defense was pleaded. In brief, that equitable defense was that the plaintiff had by certain conduct granted to the defendant a renewal, for a ten-year period, of a lease which it is conceded commenced on October 2, 1915, and expired October 2, 1925. After the jury had been impanelled the…