(concurring specially). An examination of the pleadings and of the facts presented by affidavit in support of the motion for a new trial makes it to appear beyond question that there are important issues which are properly triable in this action, upon which no-trial has been had. The one important question for the determination of this court is whether or not the circumstances which are responsible-for the failure to try these issues are such as amount to legal surprise within the meaning of § 1660, Compiled Laws of 1913. If a case of' legal surprise existed, it became the duty of the trial judge to grant a new trial.
It must be borne in mind that this is an equitable action, that it was tried as a court case, and that the granting of a new trial upon the-issues presented by the circumstances surrounding the obtaining of the-second order would not involve the delay and expense attendant upon a second jury trial. As I view the matter, courts are justified in being-much more liberal in granting new trials in court cases, under § 1660, Compiled Laws of 1913, than in jury cases; and there is 'less-reason for accepting the findings of a trial judge as a basis for final judgment in a court case where, for an excusable reason, a trial has not been had upon important issues, than in cases where the issues have-been submitted to a jury. In my judgment a new trial should be had in this ease for the purpose of determining the terms of the contract-entered into by the parties, if a contract was in fact consummated. It is true that, upon the first trial, the plaintiff relied upon the order-of September 15th, and the defendant upon the order of September 22d,. *303as constituting the terms of the contract; and, while it seems clear that the order of September 15th did not result in a contract, the record discloses that there is grave doubt as to whether the order of September 22d expressed the contractual understanding of the parties. The granting of a new trial should be confined to this issue under appropriate amendments.
It appears that the plaintiffs attorney, in drafting his complaint, relied upon a copy of an order which had been supplied by one of the defendant’s agents. This order was dated September 15, 1913. The answer of the defendant sets up an order alleged to have been signed by the plaintiff September 22, 1913. The reply is a general denial of the new matter set up in the answer. Nowhere in the pleadings are there any allegations of fact with reference to the circumstances surrounding the rescission of the contract evidenced by the order of September 15th, and of the reincorporation of the terms of this order into the order of September 22d. The letters referred to in the opinion of Mr. Justice Grace explain the efforts of the defendant’s attorneys to induce the plaintiffs attorney to shift his ground before the trial, and to' rely upon the order of September 22d. Plaintiffs attorney, however, upon an examination of the second order and apparently in ignorance of the' circumstances surrounding its execution, wrote defendant’s attorneys relative to the second order as follows: “That would be worse than buying a ‘pig in a poke,’ and while I have not seen the plaintiff in this case, as he lives in Minnesota, still I take the responsibility under all the circumstances to stand upon my complaint as served and on the contract which I set up and which he did sign, and which looks to me would be much more reasonable to assume that he executed said contract than the one sent to the bank. Tou no doubt have examined the contract sent to the bank, and it expressly provides that there is-no warranty of said machinery except as to title, and I never heard a man in this country buying machinery to this amount or less under such contract.” It appears that the writer of the above letter, Mr. O. A. M. Spencer, was an old man, who had been practising law for forty years .or more. That he was at the time under a mental strain due to the contemplation of the severance of social and business relations extending over a period of a lifetime, and of moving to new surroundings in a milder climate. It is true that the letters of defend*304ant’s attorneys and the copy of the order forwarded to the bank for plaintiff’s examination showed clearly their intention to rely upon tbe second order, but it is equally true that tbe second order was taken by defendant’s agents and substituted for tbe first. No explanation of any sort is found in tbe correspondence preceding tbe trial, as to bow the second order came to be executed, nor is there even an admission of the execution of tbe first order. In view of tbe facts that tbe plaintiff’s attorney bad no opportunity to consult bis client concerning tbe second order; that tbe second order bad been executed at tbe solicitation of tbe defendant’s agent; and that in executing bis purpose be bad carried to tbe plaintiff a letter written by plaintiff’s brother and agent, suggesting that tbe defendant’s agent bad “made a mistake on tbe terms of tbe contract, as be meant four payments instead of four years,” and that “be (defendant’s agent) asked me to drop you a lino and explain tbe change so you would understand it to change the- payments from four years to four falls, or four payments, this fall one payment and three falls for balance. I compared contracts they are exactly the same, only change being in payments,” it seems that tbe plaintiff’s failure to secure tbe trial of tbe issues surrounding tbe execution of tbe second order or contract is excusable, and that, when upon tbe trial tbe issues were confined to tbe second contract, tbe plaintiff was compelled to try issues that bad previously been regarded by him as having little to do with tbe case. While it is true that there was perhaps culpable negligence on tbe part of tbe plaintiff’s attorney in not investigating tbe facts more closely before tbe trial, it is equally true that, if defendant bad pleaded tbe rescission of tbe order of tbe 15th, according to tbe facts within its own knowledge, tbe issues would have been squarely presented. I can see no reason why in a case of this character, under tbe peculiar circumstances, tbe consequences of this negligence should be visited upon a suitor.