(dissenting in part and concurring in part).
The jury found the damages:
(1) Difference in cost, $1,455.47
(2) Damages from wrong-voltage transformers, $13,544.53
(3) Damages from defective transformers, $3,952.78
As I read the record, including that made on the motion for a new trial, the trial judge was of the opinion the new trial should be granted because of insufficiency of the evidence of damages resulting from the claimed defective transformers at Lewistown, based largely on the affidavits filed and depositions taken at that hearing.
The order reduced the judgment, not in the amount of Item (3) — $3952.78 which the jury found as damages for all defec*305tive transformers, but $8925.83. This left the damages at $9601.95 rather than the $15,000 the jury found as to Items (1) and (2).
Putting aside the differences between the judge's opinion and the statements in the order drawn by counsel it is difficult for me to follow the trial court's reasoning. There was no challenge to the jury's finding in Item (1) and on Item (2) the trial judge's September 6, 1962 opinion granting plaintiff's "motion for new trial" states "On the question of the sufficiency of the evidence to sustain a verdict for defendant on account of the wrong-voltage transformers, I have already ruled * * * my decision * * * will stand". If so, Items (1) and (2) should stand.
I am convinced the showing of newly discovered evidence affected the granting of a new trial on the insufficiency ground. As to the former plaintiff's counsel did not show legal diligence or surprise. That damages either at different projects or from the wrong-voltage transformers and defective transformers were not separated in the evidence or by other methods was a choice available to, but not used by, them at the trial. .
The new trial order gave defendant an option of accepting: a reduction of $10,319.58 rather than a correct reduction of $3,-952.78 the defective transformer damage item. I would now grant defendant this option of consenting to a reduction of the judgment in the latter amount; failing to do so an order granting a new trial as modified by the court's opinion would be entered. Because a majority conclude otherwise on this feature, I am compelled to dissent. In view of this result and the first protracted trial, the opinion now wisely limits the new trial to the issues specifically noted and I concur in that remand. A recent Iowa opinion, Feldhahn v. Van Deventer, 253 Iowa 1194, 115 N.W.2d 862, so concluded. It is a disposition trial courts may use judiciously.
HANSON, J„ concurs with BIEGELMEIER, J„ opinion.