Martin

This is an action to recover the price of figs sold and delivered on August 19, 1903. The parties entered into the following written contract:—

Some of the figs were then growing upon the trees. There is some confusion in the pleadings as to the amount of these dried figs which were delivered. The complaint alleges there were 71.1015 tons delivered and claims as a balance due the sum of $435.91, while the answer denies that plaintiff delivered 66 1-6 tons of figs or any other number of tons or greater amount than 65 97-250 tons and denies that there remains due and unpaid plaintiff the sum of $437.50 or any other sum.

The case was tried by a jury, which found a verdict for plaintiff for the sum of $435, and judgment was rendered for plaintiff for that amount. A motion was made for a new trial on the grounds that the evidence is insufficient to justify the verdict; that said verdict is against law; that “on account of errors of law occurring at the trial and excepted to by the defendant” and on account of newly discovered evidence, etc. The motion was granted and the appeal is from the order granting the motion, and it appears from what' the trial judge said on the hearing of the…