
    EQUITY — JURY.
    [Cuyahoga (8th) Circuit Court,
    February, 1905.]
    Winch, Henry and Marvin, JJ.
    Darlington Brick & Min. Co. v. Bernard Schatzinger et al.
    Jury Trial Impossible In Complicated Three Cornered Suit.
    Where A orders merchandise of B who has already sold his entire stock to C, and B assigns the order to C who assumes and fills it upon the guaranty of B that he will pay the freight and dray-age, which is done, and A refuses to pay for the goods; in an action by C for the purchase price in which A and B are made defendants, B files a cross petition asking for judgment against A for the amount of the freight and drayage, and A files a cross petition asking judgment against B for breach of contract, the rights of parties are so involved, as to make a jury trial impossible.
    Appeal.
    
      Weed <& Meals, for plaintiff.
    
      P. G. Kassulker and Carpenter, Young & Stocker, for defendants.
   WINCH, J.

Motions filed in these cases practically amount to an application for rehearing of an error case growing out of the same litigation in which we held that the defendant Sehatzinger, was properly denied a jury in the court below.

Whether or not we were right in such ruling is a close question, but we 'have decided to adhere to it.

There is no question that only under the principles of equity jurisdiction could the plaintiff maintain an action against the defendant Sehatzinger, on the claim set up in the petition. Pittsburgh, C. C. & St. L. Ry. v. Volkert, 58 Ohio St. 362 [50 N. E. 924].

But, it is said, that although this case involves the application of principles which are of equitable origin and nature, the action is for money only, not requiring a decree granting some mode of equitable relief, and therefore the defendant Sehatzinger was entitled to a jury in the common pleas court. Lange v. Lange, 69 Ohio St. 346 [69 N. E. 611].

We have come to the conclusion, however, that this was not an action for money only; that the pleadings presented such a three cornered lawsuit that it could not possibly have been tried to a jury; that the rules governing jury trials would have prevented the working out of the equities which we conceive underlie this law suit.

There is no question that whether a case is to be tried to a jury or by the court does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. Gunsaullus v. Pettit, 46 Ohio St. 27 [17 N. E. 231].

How stood the pleadings when the case came on for trial?' Plaintiff, by partial assignment from the defendant coal company, claimed due him from defendant Schatzinger the sum of $2,100 under a contract between Schatzinger and the coal company which plaintiff claimed to have carried out in part. Plaintiff also claimed to recover the same amount from the defendant coal company under an entirely different contract between plaintiff and it, if plaintiff failed to recover of defendant Schatzinger.

The defendant coal company claimed to recover $670 of Schatzinger under its contract with him.

Defendant Schatzinger denied the right of either plaintiff or the coal company to recover from him, and cross petitioned, asked judgment against the coal company for $2,500 damages,, for breach of its contract with him. He had no contract with the plaintiff.

Suppose under these pleadings the proof had shown Schat-zinger entitled on his cross petition to judgment against the coal company for, say $1,000 damages.

Then could a jury say that plaintiff should have judgment against Schatzinger for $1,770 and against the coal company for $330? How about the contract between plaintiff and the coal' company? Had plaintiff so carried out the contract as to entitle him to such judgment?

We take it that such adjustment of the equities arising from separate and independent contracts could only be arranged by a chancellor. The machinery of a jury trial could not work it out. Indeed, had the action been triable to a jury, the demurrer that separate causes of action against several defendants were improperly joined should have been sustained. That ground of demurrer, as provided by See. 5061 R. S. (See. 11309 G-. C.), is applicable particularly to the trial of jury cases. It was not applicable to the case at bar, if tried to the court, because all the parties in any way involved were properly before the court for a final determination, in one suit, of the entire controversy, and the settlement, upon equitable principles, of the rights and obligations, of all. And so, said demurrer was properly overruled.

As said by Judge Shauck in the ease of Bricker v. Elliott, 55 Ohio St. 577, 580 [45 N. E. 1045], a prolific source of equitable jurisdiction is the inadequacy of legal remedies, and upon that ground we base our conclusion that the case at bar was appealable.'

Motions overruled.  