Plaintiff Stromer appeals from an order (and modification thereof) denying plaintiff’s motion to set aside a judgment in favor of defendant. Additionally, an untimely appeal from the judgment itself is before us. Stromer now admits the notice of appeal was filed too late. That appeal must be dismissed.
On a former appeal of a plaintiff’s judgment in this action this court affirmed, and thereafter the California Supreme Court took over and reversed, the trial court’s judgment. That reversal was stated in the last sentence of the opinion. It expressed no directions by the court as to the future fate of the litigation. The remittitur signed by the clerk also simply ordered a reversal; nothing further. A form of judgment was thereafter prepared and presented to the trial court by the attorneys then representing Browning. 1 The preamble of the judgment form recited incorrectly: “and said remittitur having provided directions to this Court to enter judgment for the defendant, J. L. Browning.’’ The form was presented ex parte. The judgment as so presentеd was signed by the court and entered without notice. It provided for judgment in favor of defendant Browning with costs. The judgment was entered March 6, 1967. Notice of entry of judgment was duly served on Stromer’s attorneys. On March 17, 1967, a notice of motion for an order setting aside said judgment was served and filed. The motion was purportedly filed under Code of Civil Procedurе section 473. It was opposed by Browning through his attorneys who also made a motion for summary judgment based upon the proposition no justiciable issues remained to be tried. Both motions were argued together. By order entered October 13, 1967, plaintiff’s motion to set aside the judgment was denied.
Two questions are presented: (1) Was it error for the trial court to deny Stromer’s motion to set aside the judgment where no showing was made by him that on a retrial of the action evidence could be presented by plaintiff not falling within the “law of the case’’ doctrine? (2) When the whole tenor of a decision by an appellate court gives the appearance of the cоurt’s actual intention to reverse the lower court’s decision with directions will the failure by the court in the order portion (i.e., the last sentence) of the decision to spell *516 out those directions necessarily bar a judgment by the trial court made in accordance with the directions obviously intended but not stated ?
Our negative answer to the first question might seem to obviate necessity to answer the second. Coinciding factors, however, spring up as we ponder both problems. Clarity will, we think, be served by a discussion which covers these factors progressively rather than by treatment of the questions in isolation.
Facts
The decision of this court on the first appeal of this case was rеported in
It is important to note that the facts stated in both opinions are substantially identical. Those facts are:
Browning had employed Stromer as a broker to find a buyer for a ranch. A 5 percent commission was fixed. The commission would be pаyable only out of principal installments on the purchase price actually received. Negotiations followed with prospective purchasers, the Wilbur brothers. After there had been offers and counteroffers, a conference took place. Browning’s attorney was present and took notes of the negotiations. The parties reached an agreement orally. “All agreed, however, that the parties were not to be bound until each had approved and executed the sales documents to be prepared’’ by Browning’s attorney.
Browning was reserving acreage for a duck club. At the conference described, the boundаries of this area, the means of supplying water for the duck pond (through a pipeline) and the location of said line were agreed upon. And, since the Wilburs also planned a duck club, the correlative rights of the parties to the use of water had also been determined.
Preparation of the agreement was delayеd when Browning’s attorney became ill. Meanwhile, the Wilburs, with Browning’s permission, went on the land. The duck season had begun. The Wilburs and Browning both commenced to fill their respective ponds. The methods applied were those contemplated by the parties. The results were not those expected by Browning. The level of his pond dropped. The Supreme Court opinion found that uncontradieted evidence had shown that Browning’s duck club was of primary importance to him, When his duck pond level dropped, therefore, he caused *517 his attorney to make changes in the written draft of the agreement. These changes gave him virtual control over the water supply. They includеd a boundary change. The Wilburs refused to accept the changes and the deal was off.
The only question, under those facts, was whether the trial court’s findings and holding that Stromer had earned his commission could be sustained. The Supreme Court answered that question in the negative. There was no dispute as to the facts. The trial court, this court аnd the Supreme Court applied the same rules: (1) Ordinarily a broker will not be entitled to a commission unless a sale is consummated where his brokerage contract so provides; but (2) as stated by the opinion of the Supreme Court (on p. 424 of 65 Cal.2d), “A prospective seller . . . owes a duty to the broker not to act arbitrarily or in bad faith to рrevent consummation of the transaction. . . . ” If he does so act 1 ‘ the broker is entitled to his commission even though his contract provides that payment shall be made out of the proceeds of the sale. . . .” Citing the same authorities this court had cited, the Supreme Court reached a conclusion opposite to that which this court had reached. (It stated (on p. 427) : “ [E]ven if we assume that by changing the terms orally agreed upon, defendant caused the buyers to refuse to enter into a binding contract, it would appear that his actions were nevertheless consistent with the good faith which the law requires of him.” The court reasoned that “when it developed aftеr the oral agreement was made that if the transaction were completed on the terms orally agreed upon, defendant would not have the full use of the facilities of his duck club, he was not required to consummate the transaction in order that plaintiff would not be deprived of his commission. . . . [IT] is action in making the above mentioned changes . . . does not show a lack of good faith. (P. 428.)
The antepenultimate sentence of the opinion reads: ‘1 Under the circumstances, plaintiff is not entitled to recover his commission.” The last sentence is “The judgment is reversed. ’ ’
A rehearing was sought. The petition therefor raised only the same issue, Browning’s bad faith and arbitrary actiоn. 2 *518 The facts upon which the decision had been based were not challenged. The petition was denied.
The Order Form Was Apparently Inadvertent
There was only one theory upon which Browning could possibly have been held liable to pay Stromer under the issues and facts proved at the trial. That issue was: Did Browning arbitrarily or in bad faith change the terms of the purchase and sаles contract as agreed to orally? The determination of whether a person has been guilty of arbitrariness or bad faith is a determination of intent and motive. It is tested by his words and actions. When a court is given specific words and actions, the decision which it makes is made as a matter of law. In this ease the Supreme Court made а judgment that Browning had not been arbitrary; that he had not acted in bad faith. After a case fully tried, with facts not in dispute, the intent of the Supreme Court to us appears patent. It intended, as we read its opinion, that judgment in Browning’s favor be entered. We can find nothing left for the trial court to retry. Except for formalities, the litigation had ended.
The “Form Over Substance” Question
It has been stated: “An unqualified reversal
ordinarily
has the effect of remanding the cause for a new trial on all of the issues
presented hy the pleadings.”
(Italics added.) (3 Witkin, Cal. Procedure, Appeal (1954) §186, p. 2381.) We will not repeat here reference to cases which Mr. Witkin cites to support that well-settled rule. But the rule that an unqualified reversal without directions remands the case and sets it at large for further trial is a
general
one. In
People
ex rel.
Dept. of Public Works
v.
Lagiss,
The fact that the rule we discuss is a “general” rule implies that it has limitations. One limitation is that a case is to be set at large for retrial only when that is the intent of the appellatе court. “Judgment reversed” at the end of an opinion is, of course, strong indication of such intent. But when the opinion as a whole establishes a contrary intention, the
*519
rule is inoperative. To hold otherwise would be to make a fetish of form. Our Supreme Court did not give the last sentence such overriding importance in
Snapp
v.
State Farm Fire & Cas. Co.
(1964)
We have not, of course, been able to trace every instance in which an aрpellate court has, in the last line of its opinion, stated: “judgment reversed” and in which—reading the opinion as a whole—it was manifestly the court’s intention to direct a defendant’s judgment. We did, however, commence a journey through volume 65 of California Reports 2d, the same volume in which
Stromer
v.
Browning
appears. The first unqualified “judgment is reversed” we reached was
Carnation Co.
v.
City of Los Angeles
(1966)
*520
Stromer cites
Erlin
v.
National Union Fire Ins. Co.
(1936)
The Law of the Case
If we are also mistaken about the intent of the Supreme Court on the first appeal of
Stromer
v.
Browning, supra,
We have read the record (a clerk’s transcript) of the proceedings before the trial court when the two motions were argued. Written points and authorities are exhаustive in their treatment of the facts and law. Counsel for Browning submitted for the court’s consideration the record in the first action. (Also the judge who heard the motions was the same judge who had presided at the trial of the case and was therefor familiar with the evidence.) It was pointed out that the facts relating to both the purchase and sale negotiations and the brokerage contract has been exhaustively tried. Effectually, Stromer was challenged to explain any possible new evidence or theory which would justify the time and expense to the parties and to the courts if a new trial was had. Counsel for Stromer declined that challenge. The trial court in ruling upon Stromer’s motion concluded there was no reason to vacate its judgment because there was nothing to retry. On this appeal appellant’s briefs are silent as to the existence of any new evidence or theory upon which Stromer could recover his commission. At oral argument questioning by this court *521 could elicit no infоrmation on that subject. Effectually, Stromer’s position adds up to: Wait and see!
Appellant concedes that the doctrine of the law of the case would apply on any retrial of the ease. The doctrine deals with the effect of the first appellate decision upon the subsequent retrial or appeal. It sаys that the decision of an appellate court stating a rule of law necessary to a decision establishes that rule and makes it determinative of the rights of the parties on any subsequent retrial or appeal. (See 3 Witkin, Cal. Procedure (1954) Appeal, § 210, p. 2420, and authorities cited. ) The rule established by the first appeal in Stromer v. Browning was that there was no sufficient evidence to establish that Browning had acted arbitrarily or in bad faith. If there were a retrial (assuming, contrary to our belief, that one was ordered) and no substantial difference in the evidence at the retrial, the former decision is the law of the ease. (See 3 Witkin, Cal. Procedure (1954) Appeal, § 213, p. 2424, and authorities cited.)
Appellant argues that he was entitled on his motion to an order vacating the trial court’s judgment, wholly irrespective of any showing of merits. He even puts it in terms of “procedural due process ’ ’—a constitutional right.
Equitable Principles Govern Relief Granted on Motions to Vacate Erroneous Judgments
As early as 1861 the California Supreme Court said in
Roland
v.
Kreyenhagen,
“ The ultimate purpose of relief under C.C.P. 473 is to give the moving party a fair trial on the merits. Hence he must show that he has a meritorious ease or defense, so that a different result may possibly be reached if the judgment or order is vacated.
(Greenamyer
v.
Board etc.
(1931) 116 C.A. 319, 325,
*522 Appellant here has appealed to the equitable jurisdiction of the courts but without any showing of merits which could justify the exercise of that jurisdiction.
The appeal from the judgment is dismissed as being untimely. The orders (filed October 2, 1967, and October 13, 1967) are affirmed.
Friedman, J., and Regan, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied February 19,1969.
Notes
The attorneys are not those representing Browning on this appeal.
Plaintiff Stromer’s argument on page 11 of his petition for rehearing (of which we take judicial notice) is summarized thusly: “If defendant had acted in good faith there would have been no breach of the brokerage contract, (i.e., the obligation to pay would never have arisen by virtue of the failure of a condition precedent.) The trial court is presumed to have known this law. Nevertheless, the trial court found that defendant *518 breached this brokerage contract. (Finding 13.) This finding is inconsistent with good faith, which, under the law, would preclude such a finding. ’ ’
Although Stromer purportedly based his motion upon Code of Civil Procedure section 473, strictly speaking it does not fall within that section (see
Consolidated Constr. Co.
v.
Pacific Elec. Ry. Co.
(1920)