30 Minn. 316 | Minn. | 1883
In this case, prior to the commencement of the trial, the defendant demanded a jury trial of the issues, without specifying any particular issues. That motion made at that time had to be decided upon the pleadings; and the character of the case made by
The allegations in the complaint of conversion of specific items would, if there were nothing else in the case, make it what would formerly have been an action at law and properly triable by a jury. But there are also allegations which make if an action by a principal against an agent, for a discovery and accounting, — and the complaint demands an accounting, — which formerly were matters of equitable cognizance, and now triable by the court without a jury. The case may, therefore, be regarded as one where causes of action triable by a jury and causes of action triable by the court are united. In such case, to secure a jury trial of the issues properly triable by jury, the proper mode is by a demand, not that all the issues in the case, but that the specific issues proper for a jury, shall be so tried. Defendant made no such demand and he cannot be heard now to complain. As his demand was for what he was not entitled to — to wit, that all the issues be tried by a jury — it was rightly denied.
Defendant’s motion for judgment On the pleadings, and also the motion to dismiss made when plaintiff rested, were properly denied. Those motions appear to have been made on the theory, as to the former, that if the complaint assumes to set forth an equitable cause of action, and some facts essential to such a cause of action be wanting, although a legal cause of action be set forth, the defendant is entitled to judgment; and as to the latter, that if the cause of action set forth in the complaint be equitable, and, when plaintiff rests, there be some fact wanting in the proofs to make the .cause of action equitable, the court ought, on defendant’s motion, to dismiss the action, although a legal cause of action may have been proved. The theory is entirely inadmissible. When the facts alleged in the complaint show the plaintiff entitled to relief, whether legal or equitable in its nature, he has a right to a trial of those allegations, unless his admissions have deprived him of the right. And, generally, before entering upon the trial, the only occasion the court has to decide whether the cause of action be legal or equitable, is for the purpose of determining the mode of trial. When the proofs make out, within the allegations of the complaint, a cause of action, legal or equitable,
Whether the court erred in excluding the question to defendant as to a purpose to cheat or defraud plaintiff in making in the books arbitrary entries of cash received from sales of goods testified to by him, is rendered immaterial by the finding of the court that the entries referred to were not arbitrarily made, but that they truly represented cash received by him for goods actually sold. What he might testify as to his Intent in doing a thing which the court finds he did not do, could have no effect on the result.
There is certainly evidence reasonably tending to establish each of the facts found by the court below. Though it be conceded that the evidence against was stronger than that in favor of the findings, the preponderance is not so great as to justify us, within the rules of decision always acted on by this court, in setting aside the findings.
The court having found that defendant had appropriated to his own use and not accounted for certain .items of money and goods, it was proper for it to order judgment for the amount and values thereof, without basing its order on a general statement of the accounts between the parties. If a full statement of the accounts would show that the defendant had accounted for the items found against him, it was for him to show it.
Order affirmed.