Mildrеd Ripling and William J. Ripling seek a peremptory writ prohibiting respondent court from proceeding without a jury in the case of Norton v. Ripling (L. A. Super. Ct. No. 556274). It is not questioned that prohibition is a proper remedy.
On February 25, 1949, Richard Norton, as guardian of the estate of Thomas J. Norton, incompetent, filed an action against Mildred Ripling, sister of Thomas. (Thomas died in 1950 and Richard now aрpears as administrator.) The complaint was in two counts, the first pleading facts, the second a common count for money had and received. In substance the first count alleged that between January, 1942, and January, 1945, Thomas J. Norton had paid over and delivered to defendant “for safekeeping” $21,849.65; that defendant “orally promised and agreed to hold said moneys in safekeeping for plaintiff”; that defendant paid $4,172.88 from the sum for plaintiff’s use; that the guardian had made a demand for the balance but defendant refused to pay. Prayer was for judgment of $17,676.77, costs and general relief. Amended complaints were successively filed in April, 1949, May, 1949, August, 1951 and September, 1951. In some of these (including the fifth) defendant William Ripling, husband of Mildred, was joined.. The last complaint omittéd the common count, elaborated the “safekeeping” allegations to ones of trust, and added allegations on information and belief that additional sums had been entrusted to defendants. The prayer of this complaint was for money, accounting and further relief. The answer to the fifth complaint admits receipt оf $20,097.65, denies receipt of additional sums, and affirmatively alleges repayment to Thomas J. Norton of all sums entrusted.
After filing the first complaint in February, 1949, plaintiff attached real property and two bank accounts belonging to defendants. Later the property was sold and there remains under attachment one bank account with a balance of $1,-106.12, one bank account with a balance of $10,000 and a trust deed note for $13,500. In the affidavit for attachment plaintiff stated defendants are indebted to him upon an express contract for the direct payment of money “to wit money had and received.”
In June, 1949, the cause was set for trial on the jury calendar at plaintiff’s request but later went off calendar by stipulation. In September, 1951, defendant filed a request for trial and demanded a jury trial. Plaintiff later filed a mem *402 orandum for setting on the nonjnry calendar, and the case was set on the jury calendar. Before trial, the court granted plaintiff’s motion for trial by the court and granted a continuance. On defendant’s application an alternative writ issued from this court.
It is fundamental that the Califоrnia Constitution preserves to litigants the right to jury trial as it existed at common law in 1850. (Cal. Const., art. I, § 7; Cal. Const. 1849, art. I, § 3;
People
v.
One 1941 Chevrolet Coupe,
*403 Stripped of legal conclusions and reduced to ultimate facts the fifth complaint alleges that Mildred Ripling orally agreed to receive money given her by her brother Thomas J. Norton and to hold the funds until directed by him to pay them to him or for his benefit. It further alleges a demand for return of the remaining funds and refusal by Mildred Ripling to pay. The answer admits all of this exceрt the refusal to pay, alleging that full payment had been made. There is a further controversy as to the amount turned over to Mildred. It thus appears there is one issue in the case, namely, whether all the funds Mildred received under the oral agreement were used for the benefit of Thomas J. Norton or returned to him. The prayer is for accounting, money judgment and declaration of a constructive trust in money.
The real party in interest insists, and the respondent court agreed, that this is an action to enforce a trust and thus would have been tried solely in equity prior to 1850. Petitioner insists the action is one for money and triable by the common law courts. On analysis of the pleadings and the issues framed we agree with petitioner.
A fundamental error in the position of plaintiff results from a failure to note the historical background of the remedies applicable to the type of relationship alleged to exist between defendant Mildred Ripling and Thomas Norton. Plaintiff has assumed that since it is in the nature of a trust relationship only courts of equity would enforce the obligation of the trustee. "While it is true that usually only equity took cognizance of trust matters, there exists one class of cases founded on the old common law action of account which antedated the chancellor and which were triable either in law or equity. “The idea underlying the action of account was that the defendant was entrusted with property as a fiduciary . . . for which he was under an obligation to account.” (1 Scott on Trusts 82.) “If A gave money to 13 to be kept and.returned to A, A could bring an action of account against B.” (Id., p. 85.) “As the action of account became obsolete and the actions of debt and indebitatus assumpsit were stretched to occupy at least a part of the field occupied by the action of account, the court of chancery began to take jurisdiction. . . . Today it may be said, therefore, that a trust is enforceable only in equity, except where the action of account lay at common law; and that where account lay the jurisdiction of equity *404 is concurrent with that of the common-law courts which allow an action of dеbt or indebitatus assumpsit or the modern code equivalent of these actions.” (Id., p. 84.) As presently restated the guiding principle is that “ [i]£ the trustee is under a duty to pay money immediately and unconditionally to the beneficiary, the beneficiary can maintain an action at law against the trustee to enforce payment.” (Rest., Trusts, §198(1); see, also, Scott on Trusts, § 198.1.)
Although there is some confusion in the English cases and texts, it appears that they supрort the position taken by Professor Scott and the Restatement of Trusts. Sutton says of the old action of account: “Though this action lay at common law, we need only mention it to say that it is rarely met with in more modern times, owing to the substitution of other remedies for it. In the simpler cases such an action as assumpsit for money had and received was found to bе sufficient, while in the more complicated cases the tendency was to proceed in Chancery, owing to the powers of that court to enforce discovery and the like, which the Courts of Common Law did not possess.” (Sutton, Personal Actions At Common Law, p. 46.) A typical case involving this action is Godfrey v. Saunders (1770), 3 Wils. K. B. 73, 94, 95 Eng.Rep. 940, 952. In that case plaintiff consigned coral beаds to defendant in the East Indies which were to be sold and diamonds returned in payment. Defendant had sold the beads but had not remitted the diamonds, and plaintiff brought an action of account. The court held account would lie. Modernly this would be an action to enforce a constructive trust, one thought usually to lie only in equity. But, since the diamonds were the equivalent оf money, the action would be one for money the trustee was immediately to pay over and the case is within Scott’s statement. A somewhat narrower view than that expressed by Scott and Sutto nis found in 33 Halsbury’s, Laws of England (2d ed.) where it is said at page 305: “A breach of trust in itself is merely a violation of an equitable obligation;. the remedy for it, therefore, lies in equity only and must be sought in a court of equitable jurisdiction.” (Citing Co. Litt. 2726; Sturt v. Mellish, (1743), 2 Atk. 610, 612, 26 Eng.Rep. 765; Allen v. Imlett and Nicholls (1817), Holt 641, 171 Eng.Rep. 370.) But in a footnote to the above statement it is said (p. 306) : “But an action for money had and received lies against a trustee on an admission that a balance belonging to the beneficiary is in his hands.” (Citing Roper v. Hol *405 land (1835), 3 AD. & E. 99, 111 Eng.Rep. 351; Cummins v. Cummins (1845), 3 Jo. & Lat. 64.) Three eases serve to clarify the principle and point out some of the confusion: Sturt v. Mellish, supra; Roper v. Holland, supra; and Foley v. Hill (1848), II H.L.C. 28, 9 Eng.Rep. 1002. In the Sturt case, which involved a constructive trust, the chancellor refused to refer the matter to a master for an accounting and said (p. 612) : “. . . a trust is where there is such a confidence between parties that no action at law will lie, but is merely a case for the consideration of this court (but Lord Hohart, it seems, was of opinion, that an action would lie agаinst a trustee at common law. 1 Eq. Ab. 384, (D.) 1, note). . . .” In Roper v. Holland, supra, it was held that assumpsit would lie against a trustee for money as to a sum currently due to plaintiff as beneficiary of the trust. In Foley v. Hill, supra, funds of the plaintiff had been placed with defendant, who was a private banker, interest to be given and the sums to be paid over on request. The Lord Chancellor affirmed the lower court’s dismissal of the bill for an accounting saying that where the account was simple equity would not take jurisdiction. Furthermore, in 1 Halsbury’s Laws of England 53 (2d ed.) it is said that “ ‘special assumpsits’ lay ... to account . . . for money. ...” From the foregoing it appears that the law courts would entertain an action against a trustee where he had a duty immediately to pay over money to the beneficiary.
Many casеs in the United States indicate that section 198 of the Restatement of Trusts correctly states the course of the common law as that law is understood in the several states of the union.
(Carl Byoir & Associates
v.
Tsune-Chi Yu
(2d Cir. 1940),
*406
In
Conner
v.
Fisher, supra,
In
Austin
v.
Wilcoxson, supra,
The question of a jury trial in a suit against a trustee whо fails to deliver the trust fund as required was also raised in
Dettenborn
v.
Hartford-Nat. Bank & Trust Co.
(1936),
On the basis of the foregoing analysis of the law applicable to the present case it appears that it would have been triable to а law court and there is thus a right to a jury trial. Plaintiff, however, cites four California eases which he contends conclusively establish the proposition that there is no right to a jury trial in cases like the present.
(Lane
v.
Whitaker,
Although the present action is one which could be brought at law, a question arises whether it could also be brought
*408
in equity and deprive defendant of a jury trial. That there may be concurrent jurisdiction is well settled, and in such cases a right of election exists. The converse of the situation before us has frequently been considered and it has been said “ [t]here is a difference of opinion on the question whether, where the beneficiary of a trust can maintain an action at law against the trustee and the remedy at law is an adequate remedy, it is an exclusive remedy and the beneficiary cannot maintain at his option a suit in equity against the trustee. In some cases it has been held that the remedy at law is exclusive. But the better opinion is that the beneficiary can maintain a bill in equity if he chooses.” (Scott on Trusts, § 198.3;
It is not open to question that jury trial was a matter of right if the action is at law, even if it could have been brought in equity. Allegations that Mildred Ripling received the money “in trust” and “for safekeeping” do not change the essential nature of the action nor does the allegation that plaintiff is uncertain as to the amount thus received. At one stage of the proceedings plaintiff obtained an attachment upon a claim based upon express contract and for money had and received. At another stage he objected to a jury trial upon the ground that he is seeking to have the court declare a trust in his favor. We hold that he has elected to proceed at law. A judgment is sought for money presently
*409
due; the terms of the alleged trust and the duties of Mildred Ripling are not in dispute; an attachment is outstanding, and a court of law can grant plaintiff complete relief as effectively as equity. Applicable nere is the principle stated in
Mortimer
v. Loynes,
The issues presented by the pleadings are triable at law, and to a jury, pursuant to the demand of petitioners.
Let a peremptory writ issue.
Wood (Parker), J., and Vallée, J., concurred.
A petition for a rehearing was denied August 11, 1952, and Real Party in Interest’s petition for a hearing by the Supreme Court was denied September 18, 1952.