
    S. P. Brundridge v. W. M. Goodlove.
    Where, in an action on an agreement to abandon a certain business in a specified town, the plaintiff alleged a breach of the agreement to his damage a specified sum for which he asked judgment, and then stated that, by reason of the defendant’s insolvency, he would be remediless, unless the defendant was restrained from further violating the agreement, and prayed for a perpetual injunction; and the defendant answered denying the agreement: Held, That the action, though equitable relief was sought thereby, being primarily for money and a personal judgment being claimed, was one in which the parties had the right to-demand a trial by jury, and was, therefore, a case for second trial in the same court, and not for appeal.
    Error to the District Court of Shelby county.
    The original action was brought by William M. Good-love against Samuel P. Brundridge in the Court of Common Pleas of Shelby county. It is averred in the petition that both parties were practicing physicians in the town of Montra, in Shelby county. The petition proceeds as follows :
    
      “ That on or about the 8th day of July, a. d. 1872, the-said defendant entered into a verbal agreement with the plaintiff by which the said plaintiff agreed to pay, and did pay, the said defendant the sum of seventy dollars, for certain accounts, which the said defendant had against sundry parties in the neighborhood of said village of Montra, inconsideration of which — said purchase of said notes — the said defendant agreed that he would leave said village of Montra, and not return again to said village of Montra, or engage again in the practice of medicine in said village of Montra, or in said neighborhood.”
    Then follows a copy of a memorandum of the agreement,, and proceeds again as follows :
    “Plaintiff'further says, that on or about the 30th day of July, a. d. 1872, the said defendant, Samuel P. Brundridge, in violation of said agreement with plaintiff, commenced the practice of medicine again in the s*aid village of Montra, and since said time has been, and still is, engaged in the practice of medicine, in violation of said agreement, at said village of Montra and in its immediate vicinity, to the damage of plaintiff' two hundred dollars, for which he asks judgment.
    “ The said plaintiff further says, that said defendant is totally irresponsible; that he is not the owner of any property which is liable to execution, and that if said defendant is permitted to go ahead and practice medicine in said town of Montra, or its vicinity, the said plaintiff' will be greatly and irreparably damaged!
    “ The said plaintiff' -therefore prays that said defendant may be perpetually enjoined from practicing medicine in the village of Montra, or its immediate vicinity, and that he may have such other and further relief as to this honorable court may seem'just.”
    The answer merely denies that the defendant entered into the agreement stated in the petition.
    At the trial the plaintiff demanded a jury, but the court hold that the case was one in which the parties were not entitled to a jury, and refused to direct a jury trial, and the plaintiff excepted. The case was tried to the court, and the case was dismissed. The plaintiff’ then demanded .a second trial, but the court, being of opinion that a second trial could not be demanded in the case, denied such trial, and the plaintiff excepted. Thereupon he gave notice of appeal, and appealed the case to the district court. In that ■court the plaintiff moved the court to dismiss the appeal, .and removed the case to the common pleas for a second trial, on the ground that he was entitled to a second trial in that court and not to an appeal. For these reasons the ■district court granted the motion, and remanded the case accordingly.
    Thereupon Brundridge prosecuted his petition in error in the supreme court to reverse the judgment of the district ■court for error in dismissing the appeal.
    
      J. S. Conklin and James Murray, for plaintiff in error.
    
      Smith & Cummins, for defendant in error.
   Day, Chief Judge.

"We are called upon to determine but one question : Did the district court err in dismissing the appeal? The decision of that question, however, depends upon the determination of another : Had the parties the right to demand a jury trial? S. & C. 589. A jury trial may be demanded of “issues of fact .arising in actions for the recovery of money.” Code, sec. 263. If, then, this ■case was an action for the recovery of mouey, a jury trial might be demanded, for an issue df fact arose in the action. Was the action for the recovery of money? That must be •determined by the character of the petition. The petition is founded on a claim for the recovery of money as dam.ages for the "breach of a contract, and a money judgment is the primary relief asked for. Had no other relief been prayed for, there could be no question but that either party might demand a jury trial. Do the additional statements in the petition, as a ground for equitable relief, change the right of the plaintiff to demand a money judgment ? He has made a case in the petition for a money judgment, and 'it is none the less complete by reason of those statements. 'The petition seems to have been framed with the idea of relying on two grounds or causes of action — one for money, the other for equitable relief. If so, then so long as the plaintiff insisted upon a money judgment, as he might under the petition, for full damages for the broach of the contract on which the action was founded, the parties were entitled to a jury trial, for an issue of fact, and the only issue of fact in the action was joined on that branch of the ■case. Nor were they debarred from the right of such trial, though the petition also sought in addition further relief of ■an equitable character. Ladd v. James, 10 Ohio St. 437.

One thing is clear. If the plaintiff made a good cause •of action for anything, it was one for the recovery of money, ■and it is equally clear that a recovery for full damages was ■sought; nor is it less true because he endeavored to make another case which would not be triable as of right to a jury. Though- his two grounds of action, or tíre relief sought, may have been inconsistent, and therefore one or the other not maintainable, we see no reason why he should be forced to abandon his primary ground of action, nor why he might not claim to recover upon it, a's he did, hy insisting upon a trial by jury of the cause of action made in the petition for money. Grant that he could not have both remedies sought in the petition, he might elect which he would pursue. This he jpractically did, by insisting, from first to last, upon a jury trial, and the enforcement of his action as a claim for damages. lie does not seek an injunction for the future, and an account for past •damages; but the petition is framed for full damages primarily, and it would seem that he stood in a position to .ask a judgment therefor, though he might thereby debar himself from the equitable relief he prayed for.

It is claimed on the part of the plaintiff'in error that the case of Rowland v. Entrekin, 27 Ohio St. 47, is decisive of this case. In that case the right to a money judgment was •entirely dependent upon a primary equitable reformation •of a contract. On the contrary, in this case, the right to a money judgment does not depend at all upon the equitable relief sought; and, quite to the reverse of that ease, the equitable relief here sought, primarily depends upon the right to recover a money judgment. And the petition seeks primarily a money judgment, and then adds matter for equitable relief also. Since, then, the action, though equitable relief was sought thereby, was primarily for money, and a personal judgment insisted upon, the parties had a right to demand a trial by jury. The case was one, therefore, for a second trial in the same court, and not for appeal. It follows that the district court did not err in dismissing the appeal and remanding the case to the court of common pleas for a second trial.

Judgment affirmed.

Johnson, J., did not sit in the case.  