(dissenting). In October, 1913, for the sum of $3,250 defendant agreed to sell the plaintiff a new and unused 30x60 gasolene *315tractor with, fixtures and equipment, and, in lieu of a new and unused engine, defendant delivered to the plaintiff an old second-hand and repainted engine which was of much less value. The plaintiff received and used the' engine not knowing that it was an old repainted and second-hand engine, and he paid for the same in cash or notes at the price of a new engine. The jury found a special verdict most favorable to defendant. The court made an Order granting a new trial and defendant appeals.
The motion for a new trial was made on these grounds:
1. Insufficiency of the evidence.
2. .That the special verdict is insufficient and contradictory.
In the opinion as written by the chief justice it is said: The insufficiency of the evidence cannot be raised upon this appeal because the trial court has failed to make a memorandum showing that the order was based on the insufficiency of the evidence. Now, it often happens that in deciding a motion a judge fails to make and file any memorandum of his reasons. But surely the rights of the parties to a suit are not concluded by any such failure of the judge, and the counsel has no means of compelling a judge to give his reasons for any decision.
An order granting a new trial is to some extent discretionary, and it should not be reversed unless it appears to be wrong. Then it is said: The gist of the action is actual fraud, but that is not strictly true. The gist of the action is a failure of the defendant to comply with its contract. It is conceded that for $3,250 defendant agreed to deliver to plaintiff a new and unused engine, and, in lieu of the new engine, it delivered an old second-hand engine, repainted to look like new. And, of course, no old second-hand engine is equal to a new •engine. In a suit to recover actual damages, the question is the difference between a new engine and an old engine, and the question of actual fraud is wholly immaterial. The damage is the difference be-tiueen the value of a new engine and the value of the old engine delivered to the plaintiffs. Comp. Laws, § 1158. There being no claim for exemplary damages, the question of fraud is wholly immaterial. The special verdict is that the plaintiff bargained for a new engine and he .got an old, repainted' engine which he believed to be a new engine. It is true the jury say that the repainted engine was as good as new, but ■that is manifestly untrue. When a gasolene engine has been used so *316that it bas to be repainted to look like new, it is never as good as new-And the evidence demonstrates to a certainty that the old engine was very far from toeing as good as new. Indeed, it was almost worn out.
Defendant talks of its peculiar warranty which is a fraud on its face. No person except an expert machinist could ever comply with such a warranty. But that is of no consequence on this appeal. Defendant contracted for a new engine and an old one was palmed off onto him. It was done by design, by accident, or mistake. The motive is wholly immaterial. The order granting a new trial was clearly right and it should be affirmed.