Action for damages for breach of contract.
Defense, general issue, statute of limitations, and payment of all indebtedness. Verdict and judgment for defendants, motion for new trial made and granted, and appeal from the order granting said motion.
It is unnecessary, on this appeal, to make a detailed statement of the case as shown either by the pleadings or the evidence, the only question being whether the court committed an error in granting the motion for new trial which calls for reversal of its order.
The opinion of the court, given upon determining the motion for new trial, was brought up in the transcript. On the hearing, respondent moved to strike this opinion out, as it constitutes no part of the record on appeal, and the motion was granted. The court below may give an opinion, oral or in writing, upon any motion or question that arises in the course of proceedings before it, or upon the final determination of a cause; but such opinion constitutes no part of the record on appeal. No matter what reason the court below may assign for its action, this court is not bound by such reason. If this court finds that upon any ground or for any reason the action of the court below was correct, such action will be *16affirmed, regardless of the reason which the court may-have given for it. Counsel may cite it in argument, as they may any other opinion given at nisi, and it may sometimes aid .the court in a solution of the question upon or to which it is cited; but it is not an act upon which error can be assigned. For this reason — possibly for others also — the legislature, in adopting the code, has omitted it from the list of papers required to be brought up on appeal.
It is claimed upon argument that the court granted the motion for new trial because of an error in the charge to the jury, and that it was mistaken in holding that the charge was erroneous, and therefore the motion ought not to have been granted. In its charge to the jury, the court referred to certain evidence which had been given on the trial (and which is claimed to have been given without objection), and in very plain terms authorized the jury to consider whether the plaintiff had ratified certain acts of the defendants which were relied upon as acts constituting a breach of the contract. The court held that this was error, because the question of ratification was not within the issues of the cause. We think the court was right in so holding. The only issues were: 1. Whether or not there was such a contract as alleged; 2. Payment of all indebtedness under the contract; and 3. Whether plaintiff’s claim was barred by the statute of limitations. The evidence referred to was admissible as tending to prove whether or not there was such a contract. Being in, it was entitled to be considered for all purposes within the issues of the cause (if admitted without limitation as to purpose); but it was not entitled to be considered in connection with any question not involved in the issues.
But the motion for new trial was made, not only on the ground of errors of law, of which a number were assigned, but also on the ground that the evidence was insufficient to justify the verdict, and that the same was *17against law. The rule adopted in this court, that the verdict of a jury will not be disturbed on the ground of insufficiency of the evidence, unless it appears, without substantial conflict, that there is no evidence to sustain the verdict, has no application to the court below. The judge of that court has the same opportunity to see the witnesses, to judge of their credibility, and of the degree of weight which ought to be given to their evidence, as the jury has, and is often better qualified to determine those questions than the jury itself. It has, therefore, been held by this court, in a long line of decisions, that where the evidence is conflicting, this court will not interfere with the exercise of the discretion of the court below in granting a new trial, unless there has been abuse. (Minturn v. Bliss, 77 Cal. 90.) An order granting a new trial will be affirmed if it can be justified on any of the grounds upon which the motion is based, without regard to the reasons for the order expressed in the opinion of the judge; and such order will not be disturbed, unless there has been a clear abuse of discretion, where the motion was made on the ground of insufficiency of the evidence to support the verdict. (Nally v. McDonald, 77 Cal. 284.) This case bristled with conflicts in the evidence; and under the rule long since established and affirmed in the decisions cited, this court will not reverse the order of the court below in granting a new trial.
We note still one other error of law which it seems to us justified the court in granting the new trial. Plaintiff offered to prove that there had been a former trial of the cause, resulting in a verdict in plaintiff's favor for a large sum of money; and to prove in that connection by a witness then on the stand that on the morning after the verdict one of the defendants admitted to witness and to others that the verdict was a just and righteous one. This was excluded, and plaintiff excepted.
Simple evidence of the former trial and verdict would *18not have been competent, but it u.n; offered as merely preliminary to the proof of the admission by the defendant. That admission evinced a consciousness of liability so far as that defendant was concerned, at least, and as against him the evidence was pertinent and competent. (Banfield v. Whipple, 10 Allen, 31.) Other points made on the motion for new trial need not be now considered.
Order appealed from affirmed.
Works, J., Sharpstein, J., and Beatty, O. J., concurred.