
    Lewis v. Helton.
    (Decided September 28, 1911.)
    Appeal from. Rockcastle Circuit Court.
    1. Equitable Action — Issue at Daw — Trial by Jury. — Where a litigant desires to bave an issue at law 'arising 'in an equitable action tried by a jury,‘a motion for that ¡purpose must be made at tbe. time tbe pleading tendering tbe issue is filed, or witMn a reasonable time thereafter. In tbe absence of any terms by the 'chancellor as to the way the 'evidence should be introduced ■he should have 'permitted the witnesses to testily orally in court.
    2. Interest on ¿Debt — Tender.—A tender unless Isept up does not stop the interest on a debt.
    R. G. & C. C. WL/UIAM© for appellant.
    L. W. ©ETHURim & A. G. FATTERISON lor appellee.
   Opinion op the Court by

Judge Lassing

— Affirming.

This litigation involves but a single question of fact: Was the initial payment of $2,000 upon the purchase) price of a tract of land mlade by appellee to appellant? Upon the trial of this question, under proper instructions, a jury found in favor of appellee, and the case is brought here upon a question of practice.

Appellee contracted with appellant for a farm and1 certain personal property thereon, agreeing to pay 'hint $4,000 therefor. A writing evidencing their agreement was drawn up by appellant and delivered to appellee on the 8th day of September, 1910. This writing recited, that the $2,000 had been paid cash in hand, and that the second installment of the purchase money was due sixty days thereafter, when the deed iras to he made. Upon the trial appellant admitted drawing this writing, but insisted that no money h'ad in fact been paid, and that under their real agreement none was to he paid fort sixty days thereafter. Appellee was placed in possession of the farm, and along in February1- following, upon his declining to accept a deed providing for the payment of $4,000, suit was instituted to enforce the contract and subject the land to the payment’of the purchase price. It appears that, on the morning of the day following the trade appellant appeared at the home of appellee and( requested him to sign a duplicate contract of sale so that each could have a copy. "With appellant’s petition he filed what he alleges was the real contract of sale, which is as follows:

Wildie, Ky., Sept. 8, 1909.
“This contract made and entered into by and between R. II. Lewis, of the first part and Carlo Helton of the second part,
“Witnesseth, that for and in consideration of the sum' of $4,000, Four Thousand Dollars, two thousand to be paid in sixty days at the same time deed is to he made and time to be mentioned for the two thousand remaining, the said E. H. Lewis sells and conveys to Carlo Helton the farm known as the Jas. Prewitt farm being thei same farm Lewis bought of Prewitt and containing 214 8-4 acres more or less. Said Lewis also sells to Helton all of his farming implements and his part of com nowi on farm. Lewis further gives Helton seeding purpose^ now and full possession Jan. 1, 1910. The said Helton! takes Lewis’ contract with his men on farm to-wit, Lang-ford and Eagan.
“R. H. Lewis,
“Carlo Helton.”
Witness;
Carter Helton,
William Helton.”

With appellee’s answer he filed the contract of sale which was drawn by appellant on the day the sale was made, said contract being as follows:

“Sept. 8, 1909.
‘ ‘ This contract made and entered into by and between R. H. Lewis of the first part and Carlo Helton of the second part;
“Witnesses that for and in consideration of the sum of $4,000, four thousand dollars, to be paid $2,000 cash! in hand, the remaining $2,000 in time to be mentioned when deed is made R. H. Lewis do sell and convey to thei second party the farm known as the Prewitt farm, the same that said Lewis bought of Prewitt containing 21.4 3-4 acres more or less. Said deed is to be made in sixty days at said time second payment is to be made. Siaid Lewis also sells to said Helton all of his farming implements .and his part of corn crop now growing on said farm. Said Helton agrees to take Lewis’ contract with men on farm, to-wit, Langford and Egan. Said Lewis gives Helton all privileges for seeding purposes at once and full possession Jan. 1, 1910.
“Witness our signatures:
(Signed) R. H. Lewis,
Carlo Helton,
“Witness: Carter Helton,
William Helton.”

As will readily be observed, there is a radical and irreconcilable difference between these two papers. They: support the claims of their respective holders.

The case was prepared in equity, but upon appellant’s motion the issue as to whether or not this1 payment had been made was tried by a'jury. Upon the trial appellant moved to have the- testimony introduced orally. Counsel for appellee objected, and insisted that as the case had been prepared in equity the deposit-ionsi of the several witnesses1 in the case should be read to the jury. This motion was 'sustained and the1 case was so' tried, except that the court permitted some of the witnesses to be called to the stand for further examination or cross-examination, and permitted some witnesses, who had not given their depositions, to be examined orally. It is of this ruling that appellant complains and upon this alleged error.he now seeks a reversal.

Section 12 of the Code provides that upon motion either party to an equitable action may have the case transferred to the ordinary docket for the trial of any issue concerning which he is entitled to a jury trial. And in Carder v. Weisenburgh, 95 Ky. 135, and Hill v. Phillips, 87 Ky. 169, it was held that if the issue involvd in an equitable action is a purely legal one, and the decision of this legal issue determines the equitable right, the case, upon motion, must be transferred for a jury trial, and the court has no discretion in the matter. The easel under consideration falls within that class. Appellant as a matter of right was entitled to have the case transferred and the issue tried by a jury, unless he lost that right by failing to make his motion for such transfer within a reasonable time after this legal issue was made. The petition was filed in February. 1910; the answer was filed April 1st, and a tender of $2,000, admitted to be due on the land, made in open court. On April 14th a reply was filed. In this reply issue was joined on the question of the payment of the initial $2,000; but appellant at that time made no motion to transfer the case. Nor was suoh a motion made until .Tune 27th, following. On May 13th, 1910, defendant, who had the burden, took his proof in chief, and plaintiff commenced taking his proof in chief on .Tune 13th, and finished before any motion to transfer was made. It has frequently been held that where a litigant desires to have an issue at law, arising in an equitable action, tried by jury, the motion to.have the case transferred for such purpose must be ■made at the time that, the pleading tendering the issue is filed, or within a reasonable, time thereafter. Appellant did not measure up to the requirements of this rule. Under its strict enforcement he was not . entitled to have this ease transferred at all, for he delayed making the motion for an unreasonable length of time and until the case had been fully prepared to be tried in equity. The Chancellor might have denied his motion altogether, or, in granting it, placed him upon such terms as to the introduction of evidence as he saw proper. But as the Chancellor imposed no terms as to the way in which the evidence should be introduced, he should have permitted the witnesses to be introduced and testify orally before the jury, as in Morawick, et al. v. Martineck’s Guardian, 128 Ky., 155, this was held to be the proper practice. But his failure to do so, as said in that case, does not constitute a reversible error, in the absence of a showing that this failure has placed the appellant at a disadvantage. Appellant was permitted to testify orally, in addition to having his deposition read; and his father-in-law, a main witness, was likewise permitted to go before the jury and testify. Appellee was called and examined orally, as was one of his chief witnesses. Several other witnesses were likewise interrogated orally, either in whole or in part, and we fail to see wherein the appellant’s rights were in any wise prejudiced by reason of the court’s refusal to require all the witnesses to testify orally. This being so, the ruling, though erroneous, affords no ground for reversal.

Complaint is made that the court erred in refusing to allow appellant interest on his debt from the date that it was tendered in court until the date of judgment. In Lloyd v’. O’Rear, 22 Rep., 1000, it is held that a tender, unless kept up, does not stop the interest on a debt. As' the Chancellor allowed appellant interest to the date of the tender and none thereafter," in the absence of any showing to the contrary it is presumed that the tender which was made in open court was képt up.

Upon the whole case we are satisfied that the verdict of the jury does substantial justice between the parties, and it is, therefore, affirmed.  