
    Woodmansee, Guardian, v. Schiff et al.
    
      Error proceedings—Record sufficient to present question without bill of exceptions—Right to trial by furry—Damages for breach of contract where refusal to account pleaded.
    
    1. Proceeding in error will not be dismissed because no bill ol exceptions was filed, where record raised question of failure to submit cause to jury.
    2. Plaintiff in action for damages for breach of contract, is which no equitable relief was prayed for, held entitled tc trial by jury, though amended petition alleged defendant’? refusal to account.
    (Decided June 28, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. D. D. Woodmansee, for plaintiff in error.
    
      Messrs. Dorger & Dorger, for defendants in error.
   Buchwalter, P. J.

Plaintiff, D. D. Woodman-see, by amended petition, averred that he is the duly qualified guardian of Cordelia Bollin, who, on or about July 31, 1918, became the owner in fee simple of the premises in question; that, as part consideration of the purchase price, said Cordelia Bollin assumed the payment of two mortgages, and the taxes for June, 1918; that the holder of the first mortgage brought an action for foreclosure, in which action a decree was entered, and the property sold for $5,150. Prior to the day of sale said Cordelia Bollin entered into an agreement with Esther Schiff and Nathan Schiff, by the terms of which the title was to be taken in the name of Esther Schiff and she and said Nathan Schiff, her husband, were to control and manage the property, collect rents, and apply same to the payment of reasonable charges for collection; the excess to be applied upon taxes and insurance, the balance of income to be applied toward the payment of principal and interest upon the money required for the purchase of the property at said sheriff sale.

To raise the purchase money, Esther Schiff and her husband executed two mortgages, one for $4,500, and one for $865.

It was further averred that defendants required indemnity against loss, and that Cordelia Bollin executed a mortgage upon other real estate, to secure a note signed by plaintiff and her husband for $1,000 to the said Esther Schiff.

Plaintiff further avers that it was agreed that the defendants would account to Cordelia Bollin for the rents so collected and expenditures made until the plaintiff and defendants should mutually agree upon a sale, and, when the property was sold, the proceeds were to be applied to the payment of the mortgages and the balance to Cordelia Bollin, less any reasonable charges due the defendants.

Plaintiff claims that rents were collected, but that defendants have neglected and refused to account or render statements, as promised, and that, on or about August 30, 1921, defendants executed a deed to one David Misrach, conveying a fee-simple title, and have rendered no account of either the proceeds of sale or the rents collected; that the property at the time of sale was of the value of $9,000; that, by reason of the wrongful sale and the wrongful appropriation of the rents collected, the said Cordelia Bollin has been damaged in the sum of $4,000. This was later, by entry, amended to read $6,000.

Wherefore, the plaintiff prayed judgment against the defendants for the above sum, with interest from August 30, 1921.

The case was heard in the court of common pleas, and the following entry appears from the certified copy of the transcript of the docket and journal entries.

“This cause coming on for hearing upon the application, of the defendants herein for hearing of this cause by the court and dispensing with the services of the jury herein, and the arguments of counsel, and the court, being fully advised, finds that said motion is well taken and hereby grants the same, on the grounds that it is not a jury case.

“To which the plaintiff excepts.”

On the same day, judgment was entered for the defendants Esther Schiff and Nathan Schiff, to which plaintiff then and there excepted.

Error is claimed, in that the court dispensed with a jury, and considered the cause as one in equity for the court.

It is contended by counsel for the defendants in error that, as no bill of exceptions had been filed, this proceeding should have been dismissed.

Sufficient, however* appears in the record before us to raise the question whether or not there was error in the failure of the court to submit the cause to the jury.

An examination of the amended petition, to determine whether this is an equitable proceeding or an action at law, shows that the action is one for a breach of contract and damages therefor. No equitable relief is prayed for, and it is simply an action to secure a money judgment. It is not necessary in this case to award equitable relief before a money judgment can be had.

It is stated in Complete Building Show Co. v. Albertson, 99 Ohio St., 11, at page 15, 121 N. E., 817, 818:

“Plaintiff’s petition contains averments as to the failure of the defendant to account and of refusal on demand to render an accounting to the plaintiff, and other similar averments; but an action for the recovery of money as a debt or as damages is essentially an action at law, and cannot be converted into a suit in equity by the mere use of words and phrases usually found only in pleadings in equitable actions, no matter how often repeated nor the extent of variation of such allegations. The essential and material averments of the petition will be scrutinized, and the pleadings, stripped of all surplus and immaterial statements, examined, to ascertain the essential character of the action.”

Most of this language is again quoted in the case of Frederickson v. Nye, 110 Ohio St., 459, at the bottom of page 467, 144 N. E., 299, 35 A. L. R., 1163.

We consider therefore that this is purely an action at law for damages for breach of a contract, and that the court was in error in denying the plaintiff the right to a trial by jury.

The judgment will be reversed, and the cause remanded for a new trial and further proceedings according to law.

Judgment reversed and cause remanded.

Hamilton and Cushing, JJ., concur.  