Harp

The action is in assumpsit for $597.76 for money had and received. Defendant, by way of counterclaim, alleges a contract of employment of himself by plaintiff and a breach of the contract in that the services rendered had not been paid for. The jury returned a verdict for the plaintiff for the sum of $354.50. Defendant moved for a new trial on all of the statutory grounds. The court set aside the verdict of the jury and granted the motion for a new trial. The order indicates that among other grounds, it is based upon “excessive damages appearing to have been given under the influence of passion or prejudice.” From this order the plaintiff appeals.

[1] It is urged that the action is not one to recover damages within the meaning of subdivision 5 of section 657 of the Code of Civil Procedure, and that the trial court had no authority to grant the motion under that subdivision. Appellant cites no authorities to sustain his contention. Robinson on Elementary Law, section 262, defines an action in assumpsit as one to recover damages for the breach of an implied contract, etc. Among other implied contracts there mentioned is that of money had and received which the same author defines…