Curtiss

This is an appeal by the plaintiff from an order granting the defendant’s motion for a new trial. The order did not specify the ground upon which it was made; and in such case it is settled that if the record shows any valid ground upon which the order may have been made, the appellate court will presume that it was made on such ground. In this ease the record shows a valid ground upon which the order may have been made.

The complaint consists of two counts. The appellant's counsel asserts that the verdict was based upon the second count alone; and for the purpose of this opinion we assume that such was the case. We therefore dismiss from consideration the first count, and the evidence under it. The substance of the second count *377 is, that the plaintiff delivered to the defendant (a corporation) certain wheat, to be sold on commission at a fixed price, and that the defendant sold the wheat at a less price, contrary to its instructions, and without notice to the plaintiff. It is obvious that the instruction to sell at a fixed price is a main foundation of such a case. Take that away, and the case falls to the ground. Now, the plaintiff’s letter of instructions showed no such…