Schimpf

This is an appeal from an order setting aside the verdict of the jury in favor of appellant and granting defendant a new trial. Plaintiff also appeals from an order of the trial court striking out his costs on appeal awarded on a previous appeal.

The action was brought to recover the sum of $4,000 damages for an alleged breach of contract to convey certain real properties situated in the city of Marysville, California. A demurrer to plaintiff’s amended complaint was sustained by the trial court without leave to amend, plaintiff appealed from the judgment entered, and the district court of appeal affirmed the judgment of the lower court, but on a hearing in the supreme court the judgment of the superior court was reversed. Defendant then answered the amended complaint and the case was tried before the superior court of Yuba County and a jury. The verdict rendered was for the sum of $3,250.

The following is the order of the trial court made in granting defendant’s motion for a new trial:

It is apparent from the foregoing order that the trial court caime to the conclusion that the verdict was against the weight of the evidence and that certain erroneous instructions were given.…