
    ROSIE D. VANDERLIP v. ROBERT E. BENNETT.
    
    February 10, 1922.
    No. 22,640.
    Denial of jury trial — estoppel against party not objecting.
    1. A party who tries a jury case to the court without demanding a jury and without objection cannot afterwards complain that ¡he was denied a jury trial..
    Findings sustained.
    2. The evidence sustains the findings for the defendant.
    Action in tlie district court for Crow Wing county to recover $600. The case was tried before McClenahan, J., who made findings and ordered judgment in favor of defendant. From an order denying her motion for a new trial, plaintiff appealed.
    Affirmed.
    
      George II. Gardner, for appellant.
    
      Murphy & Ooolc, for respondent.
    
      
      Reported in 187 N. W. 138.
    
   Dibell, J.

Action to recover $600 paid by the plaintiff to the defendant upon a contract for the purchase of a house and lot. The plaintiff claims that she rescinded the contract and is entitled to the money paid. The court found for the defendant. The plaintiff appeals from the order denying her motion for a new trial.

One claim is that the plaintiff was denied a jury trial. The record shows no error. A jury was not demanded. The plaintiff moved to submit issues to the jury. The motion recognized that the action was for trial by the court. It was addressed to the discretion of the court and was denied. The case came on for trial and was tried to the court without objection. With the record so, there can be no successful contention that the plaintiff was wrongfully denied a jury trial. Boyea v. Besch, 144 Minn. 254, 174 N. W. 894; Banning v. Hall, 70 Minn. 89, 72 N. W. 817.

The assignment that the evidence is insufficient to sustain the findings is not argued in the plaintiff’s brief. It is argued iu the brief of the defendant, and counsel for both argued it to some extent at the hearing. We have examined the evidence. There is a claim of a rescission for fraud and" a claim that the defendant failed to deliver possession at the time agreed. The findings of the trial court against the plaintiff upon these questions are well supported. Upon an examination of all the features of the case we do not see how findings for the plaintiff on the merits could be sustained.

Order affirmed.  