We are satisfied with the conclusion of the learned district court of appeal in this cause and adopt a part of its opinion herein:

It is clear that the judgment is not res adjudícala and therefore not a bar to the present action nor an estoppel upon any issue therein and that the ruling refusing to admit the judgment-roll in evidence was proper. The judgment-roll not only fails to show a ruling upon the merits but discloses that no such ruling was made! The following from the opinion of the district court of appeal is in point: “Generally, judgments merely of dismissal, whether voluntary or involuntary, are not on the merits and do not operate as a bar or estoppel in subsequent proceedings involving the same matters, unless it appears that the judgment necessarily involves those matters. (Oakland v. Oakland Water Front Co., 118 Cal. 160, 222 [ 50 Pac. 277 ]; Hubbard v. Superior Court, 9 Cal. App. 166 [ 98 Pac. 394 ]; Bell v. Solomons, 162 Cal. 105, 110 [ 121 Pac. 377 ]; Johnston v. Baker, 167 Cal. 260, 263 [ 139 Pac. 86 ]; 18 Cor. Jur. 1200; Freeman on Judgments, sec. 753.)

“When a case is dismissed without evidence having been offered it is error to render judgment on the merits. There is nothing before the court on which to base' any findings determinative of the issues. The absence of proof on either side could not involve a judicial determination of the merits of the controversy. (Freedman v. Sirota, 109 App. Div. 874 [ 96 N. Y. Supp. 812 ].) See, also, Kruger v. Persons, 52 App. Div. 50 [ 64 N. Y. Supp. 841 ]. There must have been a right adjudicated or released in the first suit to constitute the judgment a bar or an estoppel (Haldeman v. United States, 91 U. S. 584 [ 23 L. Ed. 433 ]; Rincon Water & Power Co. v. Anaheim Union Water Co., 115 Fed. 543 , 549 et seq. [Welborn, Dist. J.].)

Respondent contends that by the prior action plaintiff resorted to a conclusive election of remedies and is now barred from relying upon the present cause of action. This position, too, is without merit (Herdan v. Hanson, 182 Cal. 538, 542 [ 189 Pac. 440 ], and cases therein cited). Under well-settled principles of the doctrine of estoppel, the disadvantage caused the other party by a change of remedy must be a real injury, such as would, in the contemplation of law, amount to an estoppel, and when it is of this character the doctrine of election of remedies will be applied by the courts (Buckmaster v. Bertram, 186 Cal. 673, 678 [ 200 Pac. 610 ]; Mansfield v. Pickwick Stages, 191 Cal. 129, 131 [ 215 Pac. 389 ]; Roullard v. Rosenberg, 193 Cal. 360 [ 224 Pac. 449 ]). Here defendant has not shown or claimed that he suffered any disadvantage by reason of the prior plea in rescission and the subsequent pursuit by plaintiff of the remedy of damages. We hold that plaintiff did not elect his remedy by the prior action.

Lastly, it is contended by respondent that the order granting a new trial may be upheld on the ground that the damages awarded by the jury were so excessive as to suggest passion or prejudice on the part of the jurors (Code Civ. Proc., sec. 657, subd. 5).

We are mindful of the rules here applicable expressed in Scott v. Times Mirror Co., 178 Cal. 688, 690 [ 174 Pac. 312 ], as follows: “It is the well-settled rule of this court that when the order of the trial court in granting a new trial is general in its terms, it will be affirmed if it could properly have been granted upon any of the grounds upon which the motion for it was predicated. (Weisser v. Southern Pac. Ry. Co., 148 Cal. 426 [7 Ann. Cas. 636, 83 Pac. 439 ]; Morgan v. J. W. Robinson Co., 157 Cal. 348 [ 107 Pac. 695 ].) It is an equally well-settled and long-established rule of this court that an order granting a new trial will not be disturbed upon appeal except upon a showing of clear and manifest abuse of discretion on the part of the trial court in respect to granting the same. (Harrison v. Sutter St. Ry. Co., 116 Cal. 156 [ 47 Pac. 1019 ]; Doolin v. Omnibus Cable Co., 125 Cal. 148 [ 57 Pac. 774 ]; Sherwood v. Kyle, 125 Cal. 652 [ 58 Pac. 270 ]; Lee v. Southern Pac. R. R. Co., 101 Cal. 118 [ 35 Pac. 572 ]; Meinberg v. Jordan, 29 Cal. App. 760 [ 57 Pac. 1005 , 1007].)”

But it can be demonstrated from the record before us that the jury in the present case was neither influenced by passion nor prejudice. In answer to special issues, the jury specifically found that respondent, with a written offer in his pocket of $250 per acre for the property and while acting as the agent of his partner and cotenant, concealed said fact and represented to appellant that $175 per acre was the maximum amount he could get for it, and that relying upon said information so furnished him, appellant deeded his interest in said property to respondent for the sum of $10,000. The jury thereupon rendered a general verdict in favor of appellant for the sum of $3,958.33 and it is clear that this figure was arrived at as follows: 167% acres of land at $250 per acre amounts to $41,875. One-third thereof is $13,958.33. Subtracting $10,000 from this result leaves the amount of the verdict, to wit: $3,958.33.

It is clear from the evidence also that respondent could have obtained this amount for said property, with six per cent interest payable in advance upon the deferred payments. In fact, the record shows that a suit in specific performance was begun against him on account of an alleged contract resulting from said offer. Witnesses fixed the value of the property at $300, $250, $180, and $175 per acre, respectively. Two hundred and fifty dollars per acre was the price fixed by respondent himself, when dealing with third persons, as the value of the property. Had the sale been consummated, appellant could have sued respondent and recovered the identical amount awarded him by the jury.

It is a sacrifice of substance to form to hold that under these facts a sufficient basis may be found for upholding the action of the trial court upon the ground of excessive damages evincing passion or prejudice on the part of the jury. It is really unfair to the trial court to attempt to explain his action upon that ground for it is manifest from a reading of the record that the court was of the opinion that the doctrine of res judicata controlled the litigation. It may also be seriously doubted whether this contention is open to respondent in view of the fact that the trial court did not specify that the motion for new trial was granted on the insufficiency of the evidence (Code Civ. Proc., sec. 657; Yoakam v. Hogan, 198 Cal. 16, 20 [ 243 Pac. 21 ]), for a verdict unduly excessive is a verdict, in part at least, unsupported by the evidence. In other words, a deficiency in the evidence must be the basis for every contention that the verdict is excessive or the result of passion or prejudice. In Doolin v. Omnibus Cable Co., 125 Cal. 141, 144 [ 57 Pac. 774 ], it is said: “To say that a verdict for damages was enhanced by passion or prejudice is one mode of saying that the evidence did not justify it; and the only means of discovering therein the element of passion or prejudice, within the meaning of the statute, is by comparing the amount with the evidence which was before the court at the trial.” “Insufficiency of the evidence” means want of evidence as well as “contrary to the weight of the evidence.” (Southern Pac. Land Co. v. Dickerson, 188 Cal. 113, 117 [ 204 Pac. 576 ]; Estate of Bainbridge, 169 Cal. 166 [ 146 Pac. 427 ].)

The transaction forming the basis of this litigation transpired more than eight years ago. There cannot be the slightest doubt as to the right of appellant to recover every cent awarded him by the jury and it seems eminently appropriate that this litigation should now end.

The order granting the new trial is reversed.

Curtis, J., Sheñk, J., Seawell, J., and Richards, J., concurred.