
    LEMONT, Respondent, v. THAYER, Appellant.
    (162 N. W. 742.)
    (File No. 3929.
    Opinion filed May 16, 1917.
    Rehearing denied August 7, 1917.)
    1. New Trial — Deceit re Hand Title — Purchase Money in Sale Agent’s Hands — Obligation to Return to Vendor — Instruction, Ground for New Trial — Relief in Present Suit.
    In a suit for damages for deceit concerning title to realty sold by defendant as agent for another, to plaintiff, defendant having paid over to his principal all' purchase money received from plaintiff, except $200, before discovering that his principal’s representations to him as to title, and which he had communicated to plaintiff, were] false, held, that an instruction that as to thie money not paid over, $120 of which defendant was to retain as his commission, and $40 of which was -to go to another agent, defendant was obligated to restore it to plaintiff, was not erroneous. Held, further, that recovery of the withheld money could be had in the ©resent suit; and the fact that plaintiff sued on theory that defendant knew of falsity of the representations at time they were made, is no reason for deinying him relief in this action as to the withheld money and compelling him to sue again, even though it proved that defendant did not know of the fraud at the time-, etc.; and that violation of said instruction was sufficient ground for granting a new trial.
    3. Appeals — Error—Review—Granting New Trial, Assignment of Error for — Irrelevancy of Assignments re Directing Verdict, and Instructions.
    Where new trial is granted, the only available assignment of error on appeal is that involving such order; and correctness of suchi ruling is determinable upon specifications of error found in settled record; and assignments of error involving failure to direct verdict, and giving of instructions, ©resent no questions for review on such record.
    Appeal from Circuit Court, Lincoln County. Hon’. Joseph W. Jones, Judge.
    Action by C. W. Lemont, against H. E. Thayer, to recover damages for deceit regarding title to land! sold to' plaintiff by defendant as agent of owner. Judgment for defendant. From an order granting -a new trial, defendant appeals.
    Affirmed.
    
      A. B. Carlson, for Appellmt.
    
    
      Kennedy & Kennedy, for Respondent.
    (i) To point one of the opinion, Appellant cited: Pierce v. Carey, 37 Wis. .235; Minnehaha National Bank v. Hurley, (S. D.) 82 N. W. 87; Cfaigo v. Craigo, 118 N. W. 713 (S. D.) ; Jenkins v. C. & O. Ry. Co., 49 L. R. A. (N. S.) 1x66 (W. Va.) ; Bogart v. Crosby, 22 Pac. 84, (Gal.) ; Annotations to- Simmonds v. Long, 23 L. R. A. (N. S.) 555; Riley v. Bell, 95 N. W. 170 (Iowa); Westerman v. Corder (Kas.) 39 L. R. A. (N. S.) 500.
    Respondent'cited; Civ. Code, Secs. 1695, 1696, 1670. 1671; Kennedy v. Stonehous'e, (N. D.) 100 N. W. 258.
   GATES, P. J.

Action for damages for deceit in regard to the title to certain lands 'sold1 by defendant- as' -agent for another to- plaintiff. Verdict and judgment were for defendant. Erom an order granting a new trial, defendant appeals.

The evidence tended to show that defendant had paid' over to his principal all of the purchase money received' from plaintiff, except $160; before he discovered that the- representalions -his principal ted made to him and which he had communicated to plaintiff were false. Of this sum $40 was to go to another agent and defendant was to retain $120 for his commission. The tidal court instructed the jury that as tO' 'the money not paid over at the ¡time of the discovery of the fraud the defend-' ant would be under obligations to restore it to plaintiff. The violation of this instruction was a sufficient ground for'. granting the new trial without regard to the other reasons urged by the plaintiff in his motion for a new trial.’ Counsel for appellant insists that such instruction was erroneous, and that the recovery of the withheld money’ could not be had in this action. We think counsel are clearly in error. Because suit was brought for the whole loaf is no reason for denying judgment for a slice. Because plaintiff was of the opinion that defendant knew of the falsity of the representations at the time they were made and brought this action on that theory, there is no1 reason for denying him relief in this action as to the withheld money and compelling him to' bring another action to recover it, even though' itdeveloped that defendant did not know of the fraud at the time be made the representations. It may be entirely true that defehdant was not guilty of deceit; yet when he discovered the deceit it was his duty to pay to the deceived the money be still had on hand, and it would be farcical to compel plaintiff to bring another action therefor. We think the trial court did not abuse its discretion in granting a new trial.

There is another matter that seems to be misunderstood by counsel for appellate He has assigned as error, and properly so, the granting of the new trial. He has, however, also assigned as error the denial of bis motion for a directed verdict at the close of plaintiff’s evidence and at the close of all the evidence and Ithe giving of an instruction. These three matters are not before us and are not proper -assignments of error in view of the situation. Where a new trial is! granted, the only assignment of error available to the appellant in this Court is that the trial court erred in 'granting a' new trial, specifying the reasons,, and the correctness of the ruling of the trial Court is to be determined upon the specifications of error as contained in the settled record.

The 'order appealed from is affirmed.  