This ease was before us on appeal from a former judgment, and a new trial was granted.
We think that there was no error in either of these rulings. The plaintiff’s prayer for the cancellation of the deed in question was based upon the claim that his intestate, Watts, was incompetent to make a deed at the time he executed it, and upon the claim thаt the defendant, who was his son and confidential adviser, *216 procured the intestate to make it by undue influence and fraud. The issues involved in thesе claims are equitable issues properly triable in a court of equity. The theory upon which the plaintiff advanced these claims wаs that there was no lawful agreement between the intestate and the defendant for the conveyance in question. The theory upоn which the claim for damages was advanced was that there1 was a valid contract between the parties whereunder the intestаte conveyed the real and personal property to the defendant upon an agreement by the latter, stated in the deed, to support the intestate, comfortably and properly during his life, upon the premises, and that the defendant broke his contract and failed to properly support him. This is a cause of action for a breach of the contract, and presents an issue triablе in a court of law. To properly state it, many of the allegations essential to the statement of the equitable action were not necessary, and at least one allegation, namely, that the defendant had broken his contract, which was not essential to a statement of the equitable cause of action, was necessary to this. The facts, out of which this cause of action arose, occurred after the procuring of the deed out of which the equitable cause of action arose, and it was propеr that the two causes should be separately stated in different counts. They constitute a separate and distinct cause of aсtion, which is distinguishable from a separate claim for relief arising out of the equitable cause of action, and should be stated in a sеparate count [Practice Book (1908) p. 240, § 132], although both causes of action may, as the plaintiff claims, be joined in one cоmplaint. Practice Book, p. 242, § 136.
It is argued that if the causes of action might properly have been separated in the beginning, the оrder ought not to have been made after the case had been in court for more than two years and there had been *217 one trial of it upon the original complaint; and it is claimed that this separation of the causes of action was an error which resulted in thе deprivation of the plaintiff of a right to a trial of his whole case to the jury. As pointed out above, the defendant was entitled to have the facts upon which the claims for equitable and legal relief were based, stated in separate counts. The fact that this was not moved for or ordered prior to the first trial, cannot affect the defendant’s rights. The fact that he proceeded to a triаl of the case without moving for the separation, was not a waiver of his right to move for it after that trial had proved to be a mistrial. His action in going to trial only waived his right to ask for a separation of the causes of action so far as that trial was concernеd. When later he asked for the separation, as was his right, his motion was properly granted. As the order was properly made we need not inquire how far, if at all, it affected the court’s subsequent action in ordering that the issues of fact affecting the equitable cause оf action should be tried to the court. Such an order was made, and the correctness of that ruling is the only remaining question argued upon the appeal.
Prior to the first trial the court had ordered that all the issues of fact in the case should be tried to the jury. In the absence of such an order the plaintiff had no right to a trial by jury of the issues of fact upon which the claims for equitable relief are founded.
Meriden Savings Bank
v.
McCormack,
There is no error.
In this opinion the other judges concurred.