
    RHOADES, Appellant, v. NESS, Respondent.
    (No. 3,734.)
    (Submitted January 27, 1917.
    Decided February 24, 1917.)
    [163 Pac. 559.]
    
      New Trial Order — Affirmance, When.
    
    New Trial Order — General in Terms — Affirmance, When.
    1. An order general in terms granting a motion for new trial will be affirmed if it can be justified upon any one of the statutory grounds assigned in the motion.
    Same — Conflict in Evidence — Affirmance.
    2. Where the evidence is conflicting, the granting or refusal of a new trial is within the sound legal discretion of the trial court.
    
      'Appeal from District Court, Cascade County; J. B. Leslie, Judge.
    
    
      'Action by B. -L. Rhoades against J. O. Ness. From an order granting defendant a new trial, plaintiff appeals.
    Affirmed.
    
      Messrs. O’Leary & Reynolds, for Appellant, submitted a brief; Mr. IV. F. O’Leary argued the cause orally.
    
      Messrs. Cooper & Stephenson and Mr. J. W. Speer, for Respondent, submitted a brief; Mr. J. A. Kaufman, of Counsel, argued the cause orally.
   MR. JUSTICE SANNER

delivered the opinion of the court.

Appeal by plaintiff from an order granting a motion for new trial. The motion was made upon all the statutory grounds, save only that the verdict is against law, and the order sustaining it is a general one. We must therefore affirm the order if it can be justified upon any of the grounds assigned in the motion. (Reynolds v. Jones, ante, p. 251, 163 Pac. 469; Scott v. Waggoner, 48 Mont. 536, L. R. A. 1916C, 491, 139 Pac. 454.) The issue was whether there had been an account stated between the parties, and the record shows a continuous conflict of evidence upon that issue.

It must be taken as settled that where the evidence is conflicting, the granting- or refusal of a new trial is within the sound legal discretion of the trial court. (Reynolds v. Jones, supra; Walsh v. Conrad, 35 Mont. 68, 88 Pac. 655.)

The order is affirmed.

Affirmed.

Mr. Chief 'Justice Brantly and Mr. Justice Holloway concur.  