
    Hull et al. v. Bell Bros. & Co.
    
      Practice — Right of Appeal — Determined by nature of action — Section 6226 Revised Statutes — Action to enforce specific performance, is not an action to recover specific property — Section 5130 Re-' vised Statutes — Different judgment against several defendants, either has right to appeal — Judgment of appellate court super-cedes judgment appealed from — Errors committed in lower court immaterial.
    
    1. The right of appeal to the circuit court from a final judgment of the court of common pleas, under the provisions of section 5226, of the Revised Statutes, is determined by the nature of the action, and not by the form of the judgment rendered.
    2. An action to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property, nor for money only, within the purview of section 5130, of the Revised Statutes, and neither f>arty is entitled to demand a trial thereof by jury.
    3. When such action is brought against several defendants-who entered into the contract, and judgment is rendered against some of them for the conveyance of the land, and against the others for a specific sum of money, either party has the right of appeal.
    4. While an appellant may prosecute error to the judgment appealed from, before the determination of his appeal, the proceeding will avail nothing if the appeal be sustained, for then the cause stands for a new trial of the issues of fact, the judgment is superceded by that of the appellate court, and the errors occurring in the court below, if any were committed, become immaterial; nor can the affirmance of the judgment before the trial of the appeal give it any additional or different effect.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Hancock county.
    Action was brought in the court of common pleas of Hancock county by Bell Bros. & Co., a co-partnership, against P. Roettinger and Thomas McConica, trustees of the Bigelow Syndicate, and E. T. Dunn, J. Ramsey, Jr., and J. G. Hull, for the specific performance of the following contract: “This memorandum <of agreement between Bell Bros. & Co., of East Liverpool. O., of the first part, and P. Roettinger and Thomas McConica, trustees of the Bigelow Syndicate, owning the F. F. Bigelow land, consisting of one hundred and one-half acres at Findlay, O., and E. T. Dunn, trustee; J. Ramsey, Jr., trustee; J. G. Hull, trustee, of the second part, hereby enter into the following agreement, to-wit:
    “The said parties of the first part agree to erect upon said land on the east side of the T. C. & S. R. R., upon the tract heretofore described, a six-kiln pottery works for the manufacture of china pottery and similar ware, which works shall be commenced and pushed to completion in a reasonable time from this date.
    “The buildings of said works shall be substantially built of brick, with metal or slate roof; shall be three stories high at the ends; shall have six kilns, and a capaci by to employ two hundred hands.
    “In consideration of the foregoing the parties of the second part agree to convey to said parties of the first part, by good and sufficient deed of general warranty, the following described premises, to-wit:
    ‘ ‘Beginning at the southeast corner of block fifteen at intersection of Harriet and Massillon streets, thence four hundred and forty feet north along Massillon street; thence four hundred and fifty feet westward; thence four hundred and forty feet .southward to Harriet street; thence along Harriet street east four hundred and fifty (450) feet to beginning, containing four and one-half acres more or less; and three lots on a plat of said land made by Hosea Paul, Esq., said lots to be selected by said parties of the first part, said eon- " veyance to be made as soon as said buildings are completed.
    “Said parties of the second part further agree to pay to said parties of the first part the sum of fifteen thousand dollars ($15,000.00,) to-wit: five thousand dollars when the buildings aforesaid are completed; five thousand dollars thirty days after said works are in operation and employing one hundred persons or more; the balance, to-wit: five thousand dollars after said works are fully completed and employing two hundred persons.
    “Said parties of the second part further agree to macadamize one street from said works to Main street.
    “The second parties further agree to sink a gas well on said tract of land to be transferred to said party of the first part, and said first party shall have from said well a sufficient amount of natural gas to supply their works, whatever the extent may be on said premises.
    “The party of the second part, or assigns, shall have the use of any surplus gas. Should there not be sufficient gas produced from said well to . supply said works, then said parties of the second part agree to sink another well or wells, so that first party shall be supplied with natural gas for their works; and should there be connections made with other wells to be sunk in the north, then this well shall be connected with the general mains.'
    “In case it becomes necessary to supply the works with gas from high pressure mains, the charges for the same shall not exceed two hundred dollars per year for five years. Said works shall be supplied with natural gas so long as gas eon» tinues to flow in the high pressure mains in the Findlay district.
    “Parties of the second part shall have access to the well at all times for examinations of it and tests of capacity. The pipings and connections from the well shall be furnished and the well kept in good condition by the parties of the first part.
    “The well and roadway shall be commenced as soon as work is begun on the foundations of the buildings.
    “Executed this 21st day of April, 1888.”
    Signed “Phillip Roettinger, Trustee.
    T. H. McConica, Trustee.
    E. T. Dunn, Trustee.
    J. Ramsey, Jr., Trustee.
    J. G. Hull, Trustee.
    Edwin F. Bell,
    
      W. M. Bell,
    Bell Bros. & Co.”
    The petition alleges that: “On and before the 1st day of October, 1890, the plaintiff had duly kept, observed and performed all of the terms and provisions of said contract on their part to be performed. That the plaintiffs duly selected and designated the following described three lots in the plat made by Horace Paul as the three lots to be conveyed to them under said contract, to-wit: Lots four (4), five (5) and six (6) of Block “L,” in Bigelow addition to Findlay, O., and that the plaintiffs duly advise the defendants of the lots so selected. But the plaintiffs say that the said defendants have failed and neglected to perform their said contract on their part, in that they have failed and neglected and refused to macadamize one street from plaintiffs’ said works to-Main street.
    “That they have further failed to so perform their said contract in that they have failed, neglected and refused to deed and convey to these plaintiffs the said three lots so selected by plaintiffs, and in said contract so agreed to be conveyed.
    “Further and finally, the said defendants have failed to perform their said agreement in that they have failed, neglected and refused to pay to these plaintiffs, five thousand dollars, which by the terms of said contract they agreed to pay “after said works are fully completed and employing two hundred persons,” which last named event occurred on the 1st day of October, 1890, aforesaid.
    “Wherefore the plaintiffs pray that the said defendants be decreed and required .specifically to perform said contract, convey said lots, or in default thereof that the decree herein stand as a conveyance thereof, macadamize said street and pay said sum of five thousand dollars, and that in default thereof by the day named by the decree of this court, then that the plaintiffs have judgment for the amount of their damages to be ascertained by this court for the breach by the defendants of said contract in regard to the improvement of said street, to be enforced and collected in the manner provided for collecting judgments at law, and that the plaintiffs may have such other or further judgment or relief as equity and the nature of the case may demand.”
    An answer was filed by the defendants Roettinger and McConica, which, after denyingthat the plaintiffs performed the conditions of the contract on their part, alleges in substance, (1) that the stipulations of the contract in relation to the macadamizing of the street are void for uncertainty, and moreover, were waived and discharged for a valuable consideration paid by the answering defendants; (2) that the contract was entered into by them in their representative character as trustees of the Bigelow Syndicate, and not as individuals, which was well known to the plaintiffs at the time, and they are not, therefore, personally liable; and (3) that as to the obligation for the payment of the money as provided by the contract, they were sureties, merely, for their co-defendants.
    The answer of Hull and Dunn denies the performance by the plaintiffs of the conditions of' the contract on their part to be performed, stating wherein they failed to perform, and contains a counterclaim for damages for the breach.
    The allegations of new matter in the answers were controverted by reply, and the issues were tried by the court, a demand by the defendants for a trial by jury having been refused. The trial resulted in the following judgment:
    “And thereupon came the parties, and this cause was further heard and considered by the,court upon the pleadings and the testimony, and being fully advised in the premises, it is ordered, adjudged and decreed that within ten days from and after the entry of this decree, the defendants, Philip Roettinger and Thomas H. McConica, as trustees of the Bigelow Syndicate, do execute, acknowledge and deliver to the plaintiffs, Bell Bros. & Co., a deed of general warranty conveying to said plaintiffs lots four (4), five (5), and six (6) in block “L” in the Bigelow Addition to the city of Findlay, O., and that in default thereof that this decree stand and operate as a conveyance thereof. And it is further ordered and adjudged that the plaintiffs, Bell Bros. & Co., recover of the defendants, Elijah T. Dunn, Jasper G. Hull and Joseph Ramsey, Jr., the sum of five thousand five hundred and twenty-five dollars, and that the plaintiffs have execution therefor; to all of which the defendants, Elijah T. Dunn and Jasper G. Hull, duly excepted and here now except. And that as to the payment of five thousand dollars subsidy described in the petition, the defendants, Philip Róettinger and Thomas H. McConica, go hence without day, and it is ordered and adjudged that the defendants pay the costs of this action, taxed $-, in the proportions following, to-wit: Two-fifths by Roettinger and McConica, and three-fifths by Hull, Dunn and Ramsey.”
    The defendants, Hull and Dunn, gave notice of their intention to appeal, which was duly entered on the journal, and within the time allowed by law they executed the necessary undertaking for their appeal in the amount fixed by the court, and caused the appeal to be perfected. The circuit court sustained a motion filed by the plaintiffs in the action to dismiss the appeal on the ground that the cause, as to the appellants, was not appealable; and that action of the court is the error assigned here.
    The appellants also prosecuted error to the judgment from which the appeal was taken, assigning as error, the refusal of their demahd for a trial by jury. The circuit court affirmed the judgment, and a separate proceeding in error to reverse that judgment is prosecuted in this court.
    The cases have been heard together, and will both be disposed of by the opinion.
    
      
      A. Blachforcl and E. T. Dunn, for plaintiffs in error.
    The first error complained of is the refusal of the court to try the case to a jury. A jury was not waived. Section 5130. There was do written consent in person nor by attorney filed with the clerk, nor any oral consent entered on the journal. Revised Statutes, section 5204. Kelly v. State, 25 Ohio St., 576; Ellisharpi v. Buck, 17 Ohio St., 72; 4 C. C. Rep., 310; Slocum v. Swan, 4 Ohio St., 166; Averill v. Oil Co,, 22 Ohio St., 372.
    Our next claim is that the petition does not contain a cause of action against the defendants. College v. Love, 16 Ohio St., 20; Johnson v. Ollerbie, 41 Ohio St., 530; Bank v. Cook, 38 Ohio St., 444; Anderson v. Shoup, 17 Ohio St., 128; Story Agency, section 160.
    The master as part of his report, returned the evidence taken by him. In the report he finds the number of hands employed at the dates named. Exceptions were filed by defendants to the report and his conclusions of facts and assigning errors in the admission of testimony. Hoffmire v. Cunard, 11 L. B., 136; Bell v. Crawford, 25 Ohio St., 402; Gill v. Geyer, 15 Ohio St., 408; 1 Cir. Rep., 348. Also the following authorities : 40 Ohio St., 468; 2 C. C., 553; 41 Ohio St., 606; 41 Ohio St., 402; 45 Ohio St., 356; 38 Ohio St., 405; 33 Ohio St., 537; 26 Ohio St., 426; 33 Ohio St., 116; 26 Ohio St., 514.
    
      George H. Phelps, for defendauts in error.
    The first and most important reason why there can be no error in this record prejudicial to the plaintiffs in error is that the answer of Hull and Dunn, (Ramsey being in default) makes no issue and sets up no defense, set-off or counterclaim. Revised Statutes, Sec. 5070; 35 Ohio St., 104; 2 Sedgwick on Damages, section 441; 37 Mich., 139.
    The petition as to these defendants (plaintiffs in error) is taken as true. There was no issue (as to them) for trial, and hence the mode of trial, whether by the court, jury, referee or master, the plaintiffs in error will not be heard to complain.
    • Under the statute, 5305, and the remedy which it affords, the plaintiff should have no standing in a court of error until a motion for a new trial, is heard and overruled by the common pleas court. Everet, Weddell & Co. v. Sumner, 32 Ohio St., 562; Ide v. Churchill, 14 Ohio St., 372; Turner v. Turner, 17 Ohio St., 450; Spangler v. Brown, 26 Ohio St., 389; Lookwood v. Krum, 34 Ohio St., 1; Westfall v. Dugan, 14 Ohio St., 276; Harnett v. State, 42 Ohio St., 568.
    In any possible aspect of the case, in the absence of a motion for a new trial overruled, the judgment will not be disturbed on error on account of the facts or the evidence; and this court will not review the evidence for any purpose. Averill C. & O. Co. v. Verner, 22 Ohio St., 372; Kelly v. The State, 25 Ohio St., 567; Mason v. Alexander, 44 Ohio St., 318.
    It is issues of fact in actions for the recovery of money only that are triable by jury as a matter of legal right. Revised Statutes, section 5130; Chapman v. Lee, 45 Ohio St., 356.
    There was but one cause of action — a breach of one contract in two particulars, or with two elements of damage; true the plaintiffs below might have sought damages in law, but they elected to sue in equity for specific performance, and the circumstances that the performance involved the payment of money as well as a conveyance of the land, does not make the action one for the recovery of money only. 1 Pomeroy’s Equity, sections 181, 183.
   Williams, C. J.

1. Did the circuit court err in dissmising the appeal?

Under our present legislation, “an appeal may he taken to the circuit court, by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist,” Revised Statutes, section 5226. And the actions in which the right exists to demand a jury, are limited to those “for the recovery of money only, or specific real or personal property.” Section 5130. It is obvious that it is the nature of the action which determines the right of appeal, and not the form of the judgment rendered; so that, if the action be not one in which there is a right to (demand a jury trial, an appeal may be taken from the judgment, though the payment of money be the only relief awarded. It is accordingly provided by section 5230, that, ‘when the judgment is personal against the party for the payment of .money only the penalty of the appeal bond shall be double the amount of the judgment;” and, by section 5231, that the bond shall be conditioned ‘ ‘to the effect that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs and damages which may be required or awarded against him by such court.”

The nature of the action must be ascertained from the allegations of the pleadings, and the character of the relief appropriate under them. (

The action brought by the plaintiffs below was one for the specific performance of a contract, by the terms of which the defendants jointly bound themselves, for an entire consideration agreed upon, to convey to the plaintiffs certain designated lands, and pay a specified sum of money. It may be conceded that if, before the bringing of the suit, the stipulations of the contract with respect to the. conveyance of the lands had been performed, and no obligation of the defendants remained unfulfilled except that relating to the payment of the money, an action for its recovery would not be one in which an appeal could be taken. But, in the action brought, the payment of the money was sought to be enforced in connection with, and as a part of the contract for, the conveyance of the land. The plaintiffs were not required, nor permitted, to divide their action into as many separate ones as there were stipulations in the contract which the defendants were bound to perform, nor, in the same action plead each stipulation as a distinct cause of action. The petition properly states the facts as constituting one cause of action, which is for the specific enforcement of all the provisions of the contract which the defendants had bound themselves to perform. The principal issue in the case, and apparently the only one considered of practical importance on the trial, was whether the plaintiffs had so performed their part of the contract as to entitle them to demand performance by the defendants; and the trial of that issue involved the plaintiff’s right to the conveyance of the land, as well.as to the payment of the money. In this condition the case stood for trial. If the issue had been found against the plaintiffs, thus wholly defeating their action, their right of appeal, we apprehend, could scarcely be doubted; nor could that of the defendants had judgment been recovered against all of them for the conveyance of the land only; nor, do we think their right of appeal could be denied if the judgment rendered ag'ainst them had required both the conveyance of the land and the payment of the money according to the terms of the contract.

That suits for the specific performance of contracts for the sale of real property belonged to the exclusive jurisdiction of courts of chancery before the civil code, was well established, and their character was not changed by its adoption. They are still recognized as equitable actions properly triable to the court, and not of right to a jury. When a vendor’s title proves defective, or his estate is not all he agreed to convey, or is subject to an incumbrance, or outstanding interest in a third person, it has been regarded as the right of the vendee, if he so elect, to have specific performance so far as the vendor is able to perform, and compensation for any deficiency in the estate he agreed to convey, or difference between that and the estate which he is able to convey; and it was the practice of courts of chancery, in administering the remedy of specific performance, to award such compensation in proper cases. The remedy went further, and when necessary to the attainment of complete justice the court awarded either party such damages as he might be entitled to in the action, without compelling him to resort to another forum for their recovery, upon the principle that when a court acquires jurisdiction of a cause, it will exercise it to the extent of administering that full relief which the case appears to demand.

A civil action to enforce the specific performance of a contract by which the defendants have bound themselves for both the conveyance of real property and the payment of a sum of money, must be classed with those which were formerly within the exclusive jurisdiction of equity. If such a suit could be said to loose its equitable character by reason of the relief sought in the enforcement of the stipulation for the payment of the money, it would have become necessary for the plaintiff, before the code, either to forego his remedy for the performance of the stipulation to convey the .land or that for the payment of the money, or split his cause of action on the contract and pursue a separate remedy upon each stipulation, and in different tribunals. A party was not required to do either. An action brought to enforce the performance of such a contract cannot now be properly regarded as one for the recovery of specific property, or money only, within the purview of section 5130 of the Revised Statutes; and, though in such action brought against several defendants judgment be recovered against some of them for the conveyance of the land, and against others for the' money, either has the right of appeal from the judgment, because the mode of trial to which, the parties are entitled can be ascertained only from the nature of the case as shown by pleadings when it is called for trial, and upon that mode of trial depends the right of appeal, and not upon the judgment recovered as a result of the trial; so that, in our opinion,the plaintiffs in error were entitled to their appeal taken from the judgment rendered against them, and its dismissal was error.

2. The appeal having been improperly dismissed, and it being necessary to remand the ease to the circuit court for a trial of the issues of fact, the question arises, what is the proper disposition of the case brought here to reverse the judgment of the circuit court affirming that of the common pleas.

We are not aware of any statutory provision, or rule of law which prevents a party who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice; otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting error, and then be determined adversely to him, thus leaving the judgment in force, his remedy on error would be lost. But if the appeal be sustained, the proceeding in error avails nothing, for the cause then stands for a retrial of the issues in the appellate court, the judgment appealed from is superseded by that of the appellate court, and the errors occurring on the trial below, if any were committed, become immaterial. If a party wishes to bring the questions raised on that trial under review by this court, he must make them on the trial in the appellate court, and prosecute error to its judgment; if not so made, so far as this court could be informed by the record, that court may have determined all questions raised in his favor. The appeal has the same effect in that respect as a new trial granted by the trial court. Bartges v. O'Neil, 13 Ohio St., 72, 75. The party having the benefit of a new trial where the errors of the former one may be corrected or cured, they cease to be prejudicial or important. The judgment rendered on the appeal becomes the final judgment fixing the rights of the parties, and that appealed from is no longer operative; and its affirmance on error, before trial had on the appeal, can give it no effect that it did not have without such affirmance. In the view thus taken of the case it is deemed unnecessary to consider the errors assigned.

The judgment of the circuit court dismissing the a/ppeal is reversed, and the cause remanded to that court for further proceedings. The petition in error in the other case is dismissed.

Burket J., having been of counsel, did not sit in the cases.  