Wendling Lumber Co. v. Glenwood Lumber Co.

This is an appeal by plaintiff from an order granting defendant's motion for a new trial in an action for damages for the alleged conversion of certain lumber. The order granting the new trial was made by the successor of the judge who presided at the trial of the cause, and was expressly made upon the grounds that the evidence was insufficient to sustain the verdict and that the jury did not follow the instructions of the court. *Page 413 Defendant claims that the order granting a new trial was correctly made for a reason not specified therein, — viz. that the trial court erred in admitting certain evidence. It is true, as claimed by counsel, that in our review of the order we are not confined to the grounds specified therein by the court granting the motion, but will affirm the order if it was correctly made upon any ground upon which the motion was based (see Weisser v. Southern Pacific Ry. Co., 148 Cal. 428 , [ 83 P. 439 ], and cases there cited), the only limitation being that where the trial court has in its order expressly excluded the ground of insufficiency of evidence as a basis for its action, we will not consider that ground if the evidence was conflicting. We…

In denying a rehearing, it is proper to state that what is said in the opinion relative to want of title in the vendee where a sale of personal property is obtained by fraud was said entirely with relation to the respective rights of the vendor and vendee. That title passes in such a case in the sense that the vendee in good faith and for a *Page 418 valuable consideration of the fraudulent vendee takes a good title cannot be disputed. But as between the vendor and fraudulent vendee, or any person taking from such fraudulent vendee with notice of the fraud or without consideration, the sale may, at the election of the vendor promptly made, be treated as an absolute nullity.