WILLIAMS PANEL BRICK MFG. CO.
v.
HUDSIN
Docket No. 7787.
Michigan Court of Appeals.
Decided March 30, 1971.*176 Dexter & McMath, for plaintiff.
John L. Kadela and Richard C. Tripp, for defendants.
Before: R.B. BURNS, P.J., and J.H. GILLIS and DANHOF, JJ.
PER CURIAM.
Defendants appeal the trial court's decision to grant plaintiff's motion for a new trial.[1] The trial court, in a written opinion, granted the new trial on the basis that the jury's verdict "shocks the judicial conscience" because it was "against the great weight of the evidence". Speculating on the jury's rationale in returning such a verdict, the trial court stated, "Apparently, there is a natural prejudice against people in this type of business, the home modernization business".
The parties contracted for the plaintiff to remodel the defendants' home for $4,755. After the remodeling work was completed defendants refused to pay plaintiff on the grounds that the work had not been completed according to the contract and that plaintiff had failed to perform the work in a good and workmanlike fashion.
Plaintiff filed suit to foreclose a mechanic's lien in the amount of $4,755, and defendants counterclaimed for $10,000 and demanded a jury. It was not until after the jury was selected and the first witness sworn that the court and the parties realized *177 that the case was equitable in nature. The judge discussed the matter with both counsel in chambers and informed them that the case would be tried as a jury case. When counsel were asked by the judge if there were any objections, neither attorney objected.
The jury returned a verdict of no cause of action against the plaintiff and $1,200 in favor of the defendants. The question presented for appeal is whether the trial court erred in granting plaintiff's post-verdict motion for a new trial.
The granting of a new trial rests in the discretion of the trial court. Detroit Tug & Wrecking Co. v. Circuit Judge (1889), 75 Mich 360; J.L. Hudson Co. v. Barnett (1931), 255 Mich 465; People v. Poole (1967), 7 Mich App 237; Benmark v. Steffen (1968), 9 Mich App 416.
The rule laid down in Benmark v. Steffen, supra, to determine if the trial judge has exercised his discretion properly is to the effect that if the reasons assigned by the trial judge for his action are legally recognized and the reasons are supported by any reasonable interpretation of the record, he acted within his discretion.
GCR 1963, 527.1(3), (4), and (5) support the trial judge's reasons for granting a new trial. After reviewing the record we conclude the trial court's decision was not unreasonable.
Affirmed. Costs to plaintiff.
NOTES
[1] Orders granting new trials are reviewable upon leave granted. Benmark v. Steffen (1968), 9 Mich App 416.