Winchester

Appeal by defendant as cross-complainant from an order granting a new trial.

The action was brought by plaintiff for the rescission of a real estate contract, and in ejectment. The defendant answered and filed a cross-complaint, praying for a specific performance of the contract sought to be rescinded. The trial court found in favor of the defendant, and gave judgment against plaintiff and in defendant’s favor upon the cross-complaint. Notice of intention to move for a new trial upon nearly all of the statutory grounds was duly given by plaintiff, upon the hearing of which the court granted the same, but “solely upon errors of law.” The rule is established that upon an appeal from such an order granting a new trial the appellate court is limited in its review to errors appearing in the record exclusive of the sufficiency of conflicting evidence to justify the decision.

The written contract which plaintiff sought to rescind, and which, upon the other hand, defendant sought to specifically enforce, appears in the pleadings and findings in the words and figures following:

It may be inferred from- the record that upon the trial of the action all parties proceeded upon the theory…