
    144 F. 64
    MADDEN et al. v. McKENZIE.
    No. 1,227.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 19, 1906.
    
      Claypool, Stevens, Kellum & Cowles (Edward E. Cushman, of counsel), for appellants.
    J. C. Campbell, W. H. Metson, F. C. Drew, John S. McGinn, and Ira D. Orton, for appellee.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The .Code of Civil Procedure of Alaska, while in the main it follows closely the Code of Oregon, differs essentially from it in the particular that it provides: “The distinction between actions at law and suits in equity and the forms of all such actions and suits are abolished. There shall be but one form of action for the protection of private rights and the redress and prevention of private wrongs, which is dominated a civil action.” Carter’s Codes of Alaska, p. 145, § 1.

Such a statute, while it does not abolish all distinction between law and equity as to procedure, has the effect to render inapplicable to any complaint the objection that the plaintiff has a plain, speedy, and adequate remedy at law. Under such a statute, if the facts pleaded present a case of equitable cognizance, the cause will be heard upon the equity side of the court according to the procedure provided for the disposition of such a case, and, if the complaint is sustained, the plaintiff will be given equitable relief. If, on the other hand, the facts alleged are such as to bring the case within the cognizance of a court of law, it will be tried as an action at law, and the right of the parties to a jury trial will be conserved. If a complaint be framed ostensibly as a bill in equity, .praying for equitable relief, and yet is in its substance a complaint in an action at law, the remedy of the defendant is to move that it be dealt with and heard as an action at law. Pomeroy’s Eq.Jur.(2d Ed.) § 258; White v. Lyons, 42 Cal. 279; Smith v. Clopton, 4 Tex. 109; Ely v. New Mexico, etc., R. R. Co., 129 U.S. 291, 9 S.Ct. 293, 32 L.Ed. 688. In Daniell’s Chancery Practice (6th Am.Ed.) in the note to section 630, it is said: “Under the Code procedure, where legal and equitable relief is granted under one complaint, the plaintiff, in order to obtain equitable relief, is not required to show that there is no adequate remedy at law.”

If the present case had gone to trial upon an issue of fact in the court below, and had been tried under the provisions of the Code of Alaska governing the trial of equitable causes, and the defendants had been denied a jury trial, there would be, no doubt, ground for reversal. But, although the trial court may have been of the opinion that the cause of action alleged in the complaint was an equitable one, and may have dealt with it as such, it can be readily seen that the relief which was awarded was nevertheless appropriate to the pleadings. It was a judgment for the plaintiff on the pleadings on the ground that the answer stated no defense to the complaint. If, therefore, the appropriate judgment was rendered on the pleadings, it is immaterial whether the cause was regarded as a suit in equity or an action at law.

It is contended that the new matter stated in the answer was such that, if true, the defendants were authorized to declare the lease forfeited. We find it unnecessary to discuss the question whether it was competent to alter the written agreement of lease by the alleged oral understanding. As that oral understanding is pleaded in the answer, it falls short of alleging that the written agreement was altered. Taking all- the averments of the answer to be true, they amount to this: That three days after the execution of the written lease the parties entered into a collateral oral agreement, whereby the plaintiff was to so conduct the rented premises as to bring custom to the saloon of the defendants, in consideration whereof she was to receive certain concessions and commissions. It is nowhere alleged that her agreement so to do was one of the conditions oh which the property was leased to her, or that it was agreed that a breach of her promise should work a forfeiture of the lease. In the written agreement there was to be forfeiture of the lease only on the failure of the plaintiff to pay the stipulated rent or her commission or permission of waste. There was no general provision that her failure to perform her covenants should be ground for forfeiture. Forfeitures are not favored in law, and forfeiture will not be sustained except upon proof of a distinct and definite agreement that it is to be the penalty of a breach of the contract. We find no error in the ruling of the court on the motion for judgment on the pleadings.

Some of the foregoing considerations are applicable to ' the motion made by the appellee to dismiss the appeal. The motion was made on the ground that the complaint is, in fact, a complaint in ejectment, that the judgment is one for restitution of possession, and that the case is therefore a law case, reviewable only by writ of error. This motion does not come with good grace from the appellee, who presented the cause of action in the form of a suit in equity, and alleged in her complaint that she had no plain, speedy, or adequate remedy at law. But, irrespective of that fact, we do not think the motion can be sustained. The complaint was in form a bill in equity, and prayed for equitable relief. There is nothing in the proceedings to show that the trial court regarded the case otherwise than as a suit in equity, or that it was ever transferred to the law side of the court. It was not for the appellants, on taking their appeal, to change the nature of the case that was made in the court below. They could only bring the case to this court as they found it. If it was in form a suit in equity, it was proper to bring it here by appeal.

The motion to dismiss is denied. The judgment of the court below is affirmed.  