RILEY, J.
This is an appeal from an order granting the defendant in error, hereinafter referred to as plaintiff, a new trial. Plaintiffs in error, hereinafter referred to as defendants, contend that the trial court committed error as to a simple and unmixed question of law in granting a new trial, and also grossly abused his judicial discretion.
The action is one for the recovery of damages for alleged breach of a contract for the construction of a building. J. C. Gosdin and N. M. Gosdin, partners, doing business as Gosdin Brothers, were the contractors, and Federal Surety Company was their surety upon a bond given to secure the performance of the contract.
Defendants Gosdin Brothers filed an answer in which they admitted the execution of the contract and alleged, in substance, that they were ready at all times to complete the building under the terms of the contract, but that plaintiff had refused to permit them so to do, and had demanded certain things to he done not called for in the plans and specifications prepared by an architect, and made a part of the contract, and alleged that they had done work and furnished material to the value of $2,500 for which they had not been paid, and prayed for judgment against plaintiff in said sum.
The cause was tried before Honorable Porter Newman, district judge of Marshall county, without a jury, on May 27, 1927, and taken under advisement until July 2, 1927, at which time judgment was rendered for defendants on plaintiff’s petition and against them on their cross-petition.
On July 5, 1927, plaintiff filed his motion for a new trial, assigning as grounds therefor that the judgment was contrary to both the law and the evidence, and errors of law occurring at the trial.
For some reason, not explained, no action was taken upon this motion until May 7, 1928, at which time the motion for a new trial was sustained and defendants gave notice of their intention to appeal. On the same day the trial court signed a journal entry of the order granting a new trial, reading as follows:
“Now on this the 7th day of May, 1928, the same being a regular judicial day of the May term of this court, the motion of plaintiff for a new trial came on for hearing in its regular order and the plaintiff, J. W. Little, appearing by his attorney, R. W. Little, and the defendants J. C. Gosdin and N. M. Gosdin, and Federal Surety Company, a corporation, appearing by their attorney of record, Hatchett
&
Ferguson, whereupon the court heard the argument of counsel and reviewed the facts in the casé and being fully advised in the premises, sustained the plaintiff’s motion for a new trial and said motion for a new trial is hereby granted. The defendants excepted to the ruling of the court which said exceptions were allowed and notice of appeal was given by defendants.
”
This journal entry was prepared by plaintiff’s counsel, but whether or not it was submitted to defendant’s counsel for their approval before being signed by the judge does not appear. Some days thereafter, defendants’ counsel prepared a second or supplemental journal entry and presented it to the trial court for his signature, which he signed, and which reads as follows:
“Now, on this the 7th day of May, 1928, the same being one of the regular days of the district court of Marshall county, Okla., there came on to be heard the motion of the plaintiff for a new trial in this cause, which said motion is presented to the court by counsel for both the plaintiff and the defendant, upon the conclusion of which argument, the court makes the following statement, to wit: T had this case under advisement for about two months before judgment was rendered. At the time the case was tried, I heard all the evidence and carefully considered it. When I rendered judgment in this case, I thought my judgment was right and still think so. It was the only judgment I could then have rendered and is the only judgment I could render now. If the plaintiff ever gets anywhere with this lawsuit, he will have to materially change his testimony. The plaintiff thinks that he was outraged, and I have decided, after carefully considering the matter, to grant a new trial and to certify my disqualification
as trial judge in this cause, which I now do.’
“Therefore, an order was made by the court sustaining the motion for a new trial as is set forth in a separate journal entry signed herein, to which action of the court the defendants except and their exception is allowed. Thereupon, the defendants gave notice of an appeal to the Supreme Court of Oklahoma, which said notice the clerk is ordered to enter on the minutes. The defendants ask and are granted 90 days from this date in which to prepare and serve case-made for appeal. The plaintiff is granted 10 days after the service of said ease-made, in which to suggest amendments. Said case-made to be settled on five days’ written notice by either party.
“Appeal or supersedeas bond of said defendants is fixed at the sum of $500, and said defendants shall have 90 days from this date in which to file the same. Said bond to be approved by the clerk of this court. ”
This journal entry appears at p. 115 of the case made.
Orders were made extending the time to prepare and serve a case-made to and beyond October 16, 1928. On that date the case-made, as prepared by defendants and with certain amendments thereto suggested by plaintiff, was presented to the court for his approval or disapproval for the purpose of settling and signing the case-made. Certain of the suggested amendments were agreed to by defendants and were granted bj the court. The sixth of the suggested amend, ments called for the striking from the case-made of the second journal entry above mentioned and was resisted by defendants’ counsel. When this question was presented to the trial judge, he made the following order:
“This ease-made came on to be heard for final settlement on this the 16th day of October, 1928, and it being called to the court’s attention that an order was signed by the court on the 7th day of May, 1928, at p. 115 of the case-made, in which it was incorporated a statement as to the reasons why the court granted a new trial, and there being no record made of such statement at the time the motion was granted and no exception thereto being saved by either! party as to the statement of the court, the court of his own motion sets aside and holds for naught the journal entry on that date and recorded on p. 115 of the case-made, and adopts in lieu thereof as follows:
“ ‘That, on the 7th day of May, 1928, the same being a regular day of the district court of Marshall county, Okla., there came on for hearing the motion of plaintiff for a new trial in this case, which said motion was presented to the court by counsel of both sides and after argument of counsel the court granted the motion for a new trial, which order is recorded in case-made on p. 114%, thereof, granting a new trial and. notice of appeal was given in said order, but no time fixed in which the appeal was to* be made, but an order was duly made and! entered in the office of the court clerk allowing 90-10 and 5 for preparing and serving ease-made and settling same; thereupon the defendants gave notice of appeal to the Supreme Court of the state of Oklahoma, which said
notice was
by the clerk
entered
upon the minutes of the court as required by law, and upon the prayer of the defendants they were granted 90 days from the 7th day of May, 1928, in which to prepare and serve case-made and the plaintiff given ten days, after the service of same in which to suggest amendments, and same was to be settled upon five days’ written notice, and super-sedeas bond fixed in the sum of $500, and defendants! shall have 90 daiysi from this date in which to file same, which bond is to be approved by the Clerk of the court.”
Some contention arose as to whether or not the case-made should be settled and signed with the second journal entry appearing therein, and whether or not the trial court at the time he granted the motion for new trial actually made the remarks or statements ascribed to him in said journal entry as reasons for granting a new trial. The matter was brought to this court under the provisions of section 792, C. O. S. 1921, where an order was made directing that the journal entry be incorporated in the case-made. It, therefore, stands as the remark made by the trial court at the time he granted the motion for a new trial, together with his order setting it aside made on the 16th day of October, 1928.
Defendants, at the outset, conceded that the rule is well settled in this state that this court, on appeal, will not disturb the order of the trial court in granting a new trial unless error has been committed out a pure and unmixed question of law, ana that the granting or refusing of a new trial is always a matter largely within the legal discretion of the trial court, and unless it clearly appears that such discretion has been abused the order will not be disturbed.
Defendants earnestly contend that the record presents a case for the application of the rule that this court will review the action of the trial court in granting a new trial, in that they claim the record conclusively shows that the trial court not only committed error as to a plain andl simple; unmixed question of law, but also
that he acted in a capricious and arbitrary manner, constituting abuse of discretion.
It is first asserted that the court erred as a matter of law in granting a new trial for the reason that the evidence of plaintiff himself showed that he misconstrued the contract, plans and specifications in that he had insisted that the plans and specifications called for plate glass across the front of the building to a height of seven and one-half feet and panel glass above this to the height! of the ceiling of the main room of the building, approximately 17% feet; that the plans and specifications did not so provide, and that Gosdin Brothers so contended. This appears to have been the principal contention between the owner and contractors, and it was this disagreement that gave rise to the action. The building in question covered four 25 foot lots facing north in block 28, of the town of Madill, Okla. The lots were numbered 9. 10. 11, and 12 from west to east. The building to be constructed was a one-story brick. Plaintiff employed one J. L. Gosdin, a brother of the contractors, to prepare the plans and specifications. Blueprints of the plans were in evidence and are in the record. As originally planned and shown by the blueprints, that part of the building covering lots 11 and 12, or the east half of the building, was to have a single entrance approximately in the center with show windows on either side. The contract provided for a change in the plans so as to provide for two doors or entrances in the north end of the east half of the building, or as expressed in the contract:
“Two 25-foot fronts with show windows on north end of building on lot 12. with panel back as shown in blue print, one show window on each side small enough to allow for front door opening in center. Show window on lot 11 to he same as on lot 12, except panel back is left off, and ceiling over lobby be the same as on lots 9 and 10.”
Plate glass six feet high across the entire front was to be set in copper setting 18 inches above the floor. Above the plate glass is shown a transom bar across the entire front about ten inches in width. It is the space on the front of the building above the transom bar up to the ceiling line of the main room that gave rise to the controversy. Defendants concede that the plans call for this space across lot 12 to be filled in with double strength glass panels, but contend that no glass was called for above the transom bar on lots 9, 10, and 11.
Plaintiff apparently concedes that the plans call for no glass across lots 9 and 10, but contends that across lot 11 glass is called for above the transom bar. The original blue print showing the front elevation of the building is in the record, and as to the space above the transom bar shows no difference as between lot 12, and either of the other lots, except as to size of panels. Across lots 9, 10, 12, they are shown to be 24x32, and across lot 11, 20x32. Nothing appears to indicate or show thereon that these panels are to be filled with glass. If glass is called for on lot 12, it can as well be said that glass is called for across the entire front. On the other hand, if no glass is called for across lots 9 and 10, it may be as well said that no glass is called for across the entire front. The specifications are indefinite as to where double strength glass was to be used. All that is said with reference thereto is:
“Glass: Ail double strength glass shown size in plan put in a wood setting with strips shown as in plan. Plans show size of setting and size of glass to be used.”
Another clause of the specifications reads:
“Show windows: A frame work in section A, B, and O, on each side of fifty (50) foot space as shown in the plans. After frame work is to be floored with B and better flooring or oak flooring if required by owner, the difference will be extra to contractor. Show windows in west side to be erected as per plans nine (9i feet high from sidewalk and to be ‘sealed’ overhead at that height. ”
Defendants apparently contended at the trial and contend here that the words in this clause, “ (9) feet high from sidewalk and to be ‘sealed’ overhead at that height,” mean that no glass was called for above the transom bar.
Plaintiff contended at the trial and contends here that the words, “to be ‘sealed’ overhead at that height,” had reference to the space overhead included in the show windows, and had no reference whatever to that part of the outer wall above the transom bar.
J. L. Gosdin, the architect who prepared the plans, was a witness for defendants and testified, in substance, that, as he understood the plans and specifications as modified by the contract, they called for glass above the transom bar on lot 12, but as to lots 9, 10, and 11, no glass was called for in that space. At the close of direct testimony, the court asked the following:
“Q. As I understood the explanation of the blue prints and contract the building on lot 12. the glass front extends to the ceiling; the building on lots 11. 10, and 9, the glass front extends to the — —”
Before tlie question was completed tlie witness interrupted witli Lis answer, as follows:
“A. Transom bar line and no further, and that is here over the window.”
When ashed on cross-examination how high above the floor the ceiling of the show windows was to be placed, he answered, approximately 16 feet above the sidewalk. The specifications apparently called for nine feet.
J. 0. Gosdin and N. M. Gosdin, the contractors, both testified as to their interpretation of the plans and specifications as modified by the contract substantially the same as the architect.
From the plans and specifications and the contract and the testimony of witnesses there was some room for the contention made by each side. Notwithstanding the con.fident assertion of defendants’ attorneys, an examination of the record discloses that the evidence is not so conclusively all one way as to compel a decision in their favor. There is room for wide difference of opinion as to whether or not plaintiff was wrong in his contention. Much depends upon the weight and credit to be given the testimony of the witnesses. Without expressing any opinion on the weight of the evidence, we think it falls far short of conclusively showing that the plaintiff insisted that Gosdin Brothers, the contractors, do something which they were not obliged to do under their contract, and thereby gave the contractors just cause for abandoning the contract.
In Isaacs v. Tull, 131 Okla. 138, 267 P. 1049, this court in discussing the duty of the trial judge in passing upon a motion to set aside the verdict of the jury and grant a new trial, said;
“Upon motion to set aside the verdict of the jury and grant a new trial, the trial judge must make answer to his sound judicial judgment as to whether the verdict of the jury is fairly responsive to right and justice. If he is clearly convinced that the verdict is one of great injustice, he should set it aside and grant a new trial. Of course, the trial judge should not arbitrarily and capriciously set aside the verdict of the jury. He should calmly and deliberately weigh such motion in the light of the evidence and circumstances in the case,
“The authority and power given to the trial judge imposes upon him a position of great trust and confidence, and in the administration thereof he should wisely and cautiously use the power given him and with only one end in view, that of admiD’stering right and promoting justice, which, after all is the ultimate aim of the law.”
Here we are not dealing with a case wherein the verdict of the jury is involved. The trial court had before it the question, of whether or not his own findings and judgment should be set aside. It was a matter peculiarly addressed to his own mind and conscience as well as his judicial discretion. Defendants earnestly contend that the remarks made by the trial judge at the time he passed upon the motion for a new trial show a perfect illustration of abuse of judicial discretion. The statements referred to are as follows:
“I had this case under advisement for about two months before judgment was rendered. At the time the case was tried, I heard all the evidence and carefully considered it. When I rendered judgment in this case, I thought my judgment was right and still think so. It was the only judgment I could then have rendered and is the only judgment I could render now. If the plaintiff ever gets anywhere with this lawsuit, he will have to materially change his testimony. The plaintiff thinks that he was outraged and I have decided, after carefully considering the matter, to grant a new trial and to certify my disqualification as trial judge in this cause, which I now do.”
Some contention is made by plaintiff that the court never did, as a matter of fact, make the statements as set forth in the journal entry, but that matter is now settled and we must treat them as remarks of the court made at the time. If the court actually thought what the statement says, there would appear no good reason whatever for setting aside his findings theretofore made and the judgment based thereon. When these statements were called to his attention when called upon to settle and sign the case-made, he promptly made an order setting aside the journal entry containing the same. Plaintiff contends that this last order being made during the same term at which the new trial was granted, it was within the power of the court to so. modify his record and set aside the reasons, theretofore assigned for granting the new-trial, and that the case should be treated here as though the remarks or statements had never been made. It is difficult to understand how the trial court could set aside his reasons for granting a new trial and assign some other reason therefor five months after his action. It might have been that he had reasons other than those expressed at the time of his granting a new trial. Ho finally gave, and these are the last words on the subject, as his reasons for granting a new trial, the following:
“For the reason that at the time I
granted the motion for a new trial I thought that the court might be mistaken both as to '.the law and the facts in the case and was willing to give the plaintiff the benefit of the doubt, and give him an opportunity to have a new trial.”
■The rule is well established in this state that oral remarks made by a trial judge when about to enter an order or judgment, though incorporated in a case-made, cannot-be considered by this court upon appeal. Holt v. Spicer, 65 Okla. 17, 162 P. 686; Gus v. Nelson, 14 Okla. 296, 78 P. 170; Ruby v. Warrior, 71 Okla. 82, 175 P. 355. In the latter case it was held;
"Where, at the conclusion of a trial had before the court without a jury, the court orally makes general observations as to- the law and facts involved in the caso, and! where no special findings of fact and conclusions of law are asked for, and where the findings and judgment of the court are embodied in journal entries, the general oral observations of the court perform no oifica in a case-made, and cannot be considered by ibis court on appeal from a judgment of ‘.the trial court for the purpose of impeaching- such judgment.”
But here the remarks are incorporated in a journal entry signed by the judge and purported to give his reasons, and presumably all his reasons, for granting the new trial. As pointed out in Hall v. Polson, 130 Okla. 136, 265 P. 1068, there are nine grounds provided in section 572, C. O. S. 1921, for granting a new trial. These are said to be exclusive. If any one or more of them are set up as grounds for a new trial, and found to exist, a new trial should be granted as a matter of right. Of these nine grounds the plaintiff set up but two in his motion for a new trial. The trial court, though he made two trials at assigning a reason for his order, did not at any time assign one of the nine statutory grounds. He first said, in effect, that he was granting a new trial because the plaintiff felt that he had been outraged, and at last said that he thought at the time he granted the new trial he might be mistaken as to the law and the facts, and was willing to give the plaintiff the benefit of the doubt and give him the opportunity to have a new trial.
In De Meglio v. Studebaker Corp., 73 Okla. 177, 175 P. 342, it was held:
“It is the duty of the trial court, upon a motion for a new trial, which challenges the verdict upon the ground that it is contrary to the evidence, to weigh the evidence and to approve or disapprove the verdict, and if the verdict is such that in the opinion of the trial court it should not be permitted to stand, and it is such that he cannot conscientiously approve it, and he believes it should have been for the opposite party, it is his duty to set it aside and grant a new trial.
”
In Hall v. Polson, supra, it was said:
“As we view it, the trend of the decisions of this court has been too broad as applied to motions for new trial in law actions, where a jury passes upon disputed facts, and where there is a conflict in the evidence; moreover, when such a motion is sustained, we think it far better practice on the part of trial courts to state in the record the ground upon which the court sustains . or overrules such a motion.”
From the statements contained in the journal entry signed by the judge it appears that he did weigh the evidence. He said he thought his prior judgment was right at the time he gave it, still thought so at the time he was passing upon the motion for a new trial. He not only said that he thought his former judgment was right, but that he thought it was the only judgment he could render at the time it was rendered. He also said he thought it was the only judgment he could render at the time he passed upon. the motion for a new trial. Clearly, then, he did not disapprove his former finding and judgment, nor did he state that he thought the judgment should have been for the other party. Not only that, but in almost express language he at that time approved his former finding and judgment, for he said:
“I thought my judgment was right, and still think so.”
He weighed the evidence in the first instance and rendered his judgment accordingly. He again weighed the evidence in considering the motion for a new trial, and again said in effect that he thought the weight thereof was with the defendants. Yet, apparently, he entered his order in direct opposition to what he thought at the time the judgment should be.
In 4 C. J. 832, the rule with reference to the discretion to be exercised by the trial court is stated:
“Nevertheless, according to the weight of authority, the discretion which the trial court may exercise in passing on motions for new trial is a legal and not an arbitrary one, and in case of an abuse thereof it is' subject to review and control.”
And again, in 46 C. J. 409:
“The discretion vested in the court is not an arbitrary or capricious discretion, but rather a legal, judicial discretion, to be exercised according to, and within, the bounds of law and reason.”
In Vickers v. Philips-Carey Co., 49 Okla. 231, 151 P. 1023, Mr. Justice Sharp, speaking for the court, said:
“And so we think the rule is and should be. The ‘discretion’ spoken of in the authorities is a legal discretion; a discretion to he exercised in discerning the course prescribed by the law, according to principles ascertained by adjudged cases. * * *
“Courts are the mere instruments of the law, and can will nothing. Judicial power is not exercised for the purpose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the law. To one coming within the rule announced, a new trial should he given as a matter of right, not merely as a result of the exercise of the court’s will, So, on the other hand, where the court grants a new trial, but in doing so disregards the rules of law controlling the exercise of the power, its action presents a question of law reviewable on appeal.”
In the instant case, if the trial court had, upon mature reflection and again weighing the evidence, been of the opinion his former judgment was contrary to the law and the evidence and was such that he could not then conscientiously approve it under the evidence, it would follow that it was his plain duty to grant the plaintiff a new trial as a matter of right. But, upon the other hand, if the trial court, as appears from the record, in all good conscience thought, upon mature reflection and upon again weighing the evidence, that his former finding and judgment were correct, and the only one that he could then make and enter if called upon then to make his findings and enter judgment, it was his plain duty to deny the motion. Instead thereof, he granted the new trial apparently upon the sole ground that the plaintiff felt he had been outraged.
From the record as a whole, it appears the order granting a new trial was in direct conflict with the requirements of the law and was an abuse of discretion upon the part of the trial judge.
It is urged that this appeal should be dismissed for the reason that the case-made as signed, settled, and certilied to by the trial court, in pursuance of an order of this court, was never filed in the court clerk’s office in the court below.
This motion to dismiss has been denied by this court. It was properly denied for two reasons:
First. The errors complained of appear upon the face of the record proper, and the record is properly certified to as a transcript. The record containing all of the orders of the court made with reference to the granting of a new trial, including the journal entry containing the statements set forth, were certified to by the court clerk under the seal of the court on the 31st day of October, 1928.
Second. The case-made was settled and signed by the trial court on the 16th day of October, 1928, as to all matters except the controverted question as to whether or not the journal entry signed by the judge giving his reasons for granting the new trial should be incorporated therein. This journal entry was contained in the case-made thus settled and signed, which case-made was filed in the court clerk’s office October 17, 1928.
The question was then presented to this court as to whether or not the journal entry so signed should be incorporated in the case-made under the provisions of section 792, C. O. S. 1921. Showing was made that the trial court would not be in session in Marshall county in time to allow the settlement of the case-made in time to file same in this court.
Section 792, supra, in such cases provides:
“The appellate court, or any justice thereof, may upon notice and hearing settle the facts in dispute and make the order to be in eluded in the case-made.”
The matter was by this court referred to the referee of this court, who, upon notice, took evidence and made bis finding and recommendation to this court, whereupon this court made the following finding and order;
“And this court further finds that the plaintiff in error is entitled to have said remarks incorporated in the case-made to be filed in this court with the petition in error upon appeal and that this order should be made a part of the case-made to be signed and settled by the trial judge as hereinafter directed as evidence of the facts herein' found.
“And, it appearing to the court that the case-made in all other respects has heretofore been duly settled and signed as required by law by the Honorable Porter Newman and that no necessity for further notice of final settlement exists,
“It is' therefore ordered, adjudged, and decreed that this order be attached to and made a part of the original case-made and that thereupon the Honorable Porter Newman shall forthwith settle and sign the case-
made as herein directed without further notice to opposing party.
“
(Signed) Fred P. Branson,
“Chief Justice.”
“Attest: Jessie E. Moore, Clerk.
“By: Jessie Pardoe, Deputy.
This, we think, is a complete compliance with the provisions of the statute. However, the case was presented to the trial judge again, who made a second certificate settling and signing the case-made, which signature was attested by the court clerk under the seal of the court.
The verity of the case-made is thus completed by the certificate of the trial court to the case-made except as to the disputed question settled by this court, duly attested and filed in the office of the court clerk in proper time and by the order of this court as to the disputed question. The only object of requiring the attestation of the signature of the trial court to the certificate signing and settling the case-made is that this court may know that the signature is genuine. The object of requiring the case-made to be filed in the office of the courtl clerk is that this court may know that it is considering the proper record. By the circumstances in this case, no useful purpose could be served by requiring the case-made to be again filed in the office of the court clerk.
The order granting a new trial is reversed and the cause is remanded, with directions to reinstate the judgment in favor of defendants.
CULLISON, SWINDALL and ANDREWS, JJ., and WILLIAMS, Special Judge, concur. CLABIv, V. C. J., and HEIFNER, McNEILL, and KORNEGAY, JJ., dissent. LESTER, C. J., disqualified.