[464]*464WABNEB, CJ.
This appeal comes to us from a judgment in what the appellant denominated a suit in equity, but which the trial court apparently thought and treated as an action at law. The plaintiff sought to recover judgment for commissions earned under an oral contract of employment to sell certain machinery and equipment for the defendants, Bookhultz and Biley — co-partners doing business as Geo. E. Zweifel & Co. The case was tried before the court without a jury, and from a judgment in favor of the plaintiff the defendants appealed.
As indicated by the foregoing statement there is a sharp difference of thought whether this is an appeal in equity or in law. It raises a question which necessitates an answer before we proceed further. There is no bill of exceptions. If the appeal is in equity, this is a matter of no importance. But, if the appeal is from an action at law, then appellants’ four assignments of error must be found in and supported by such a record. In the absence of a bill of exceptions the only questions that can be considered on appeal are the sufficiency of the pleadings, the findings of the trial court, and whether the pleadings, or pleadings and findings support the judgment; and if we find them sufficient then our conclusion must be one of affirmation of the circuit court’s judgment. In so doing we have no discretion, La Grande Air Service v. Tyler, 193 Or 329, 330, 237 P 2d 503, and cases cited.
Appellants contend that this is an action for an accounting in equity. They claim equitable jurisdiction because the parties treated it as in equity during the course of the trial. In Paragraph VT of plaintiff’s [465]*465amended complaint we find the only allusion to an accounting. It there appears in these words:
“That the defendants have failed, neglected and refused to account to the plaintiff for the commissions on said sales, although often requested by the plaintiff so to do, and the defendants refuse to pay to plaintiff commissions on said sales and on said business as provided in said agreement between the plaintiff and defendants; that it is necessary that an accounting be had in order that the amounts payable and due to the plaintiff from said defendants under said sales agreement between the plaintiff and the defendants can be determined. ’ ’
This court has long recognized a clear distinction between the right to an accounting at law and the right to an accounting in equity. Kaston v. Paxton, 46 Or 308, 80 P 209, 114 Am St Rep 871, was described as “a suit for an accounting” of rentals received by defendant, but there we held the remedy was one at law for money had and received to the plaintiff’s use, and ruled that the complaint failed to state facts justifying recourse to a court of equity.
In Smith v. Howell, 91 Or 279, 301, 176 P 805, we pointed out that: “Standing alone, the request for an accounting on the part of the plaintiffs will not be sufficient to take the case into equity on the ground solely that the plaintiffs seeking the relief may owe some money to the defendants. ’ ’ The opinion followed this with the statement: “There is no allegation herein as to complexity of accounts between the parties, or in the nature of a discovery, or that a fiduciary relationship exists between the parties, nor any allegation of fraud.”
In Huebener v. Chinn, 186 Or 508, 531, 207 P2d 1136, we approved the distinction made by the Supreme [466]*466Court of Iowa in Williams v. Herring, 183 Iowa 127, 165 N.W. 342, L.R.A. 1918F 798. In the Williams ease the Iowa court held that even though the number of items upon the books and transactions covered by the period of said business might be cumbersome and difficult to present to a jury, yet the accounts were not complicated nor intricate as far as the pleadings disclosed. The court emphasized that the fact that the accounts could be more “conveniently” tried to the court than to a jury was not a ground for equitable jurisdiction, saying that, “ * * * there must be some other ground of equitable cognizance”. Later, in the Huebener opinion we find this statement from Goffe & Clarkener, Inc., v. Lyons Milling Co. 26 F2d 801; “It is entirely clear that mere difficulty of proof does not confer jurisdiction upon equity.”
Upon what basis, then, may a complaint properly lay jurisdiction in equity in an action involving accounts and accounting? As indicated by Smith v. Howell, supra, several grounds for equitable cognizance are immediately apparent. Courts of equity have jurisdiction over trusts, express or implied, for the purpose of compelling an accounting. Courts of equity have jurisdiction to settle accounts whenever a fiduciary relationship exists between the parties and the duty to render an account to one of the parties rests on the other. Templeton v. Bockler, 73 Or 494, 507, 144 P 405, and cases there cited.
An accounting may be had as incidental to other equitable relief. If the accounts proved to be complicated in the instant case, a plain, speedy and adequate remedy was available by recourse to ORS 17.725, resulting in the appointment of a referee to take an account. See Pearson v. Oregon-Washington Railroad & Nav. Co., 135 Or 336, 295 P 201, 296 P 50.
[467]*467A court of equity may also take jurisdiction in a case where an accounting is sought provided it satisfactorily appears that the account is so complex that justice cannot he done without resort to the superior equipment of the equity court. Averments concerning the complexity must be made, and in such specific form that the chancellor can see from the pleadings that he, and not a jury, should try the issues. Huebener v. Chinn, supra; 1 Am Jur, Accounts and Accounting, § 53, p. 301; Pomeroy’s Equity Jurisprudence (2d) § 2357.
We are unable to find in the pleadings of the matter before us any basis for equitable jurisdiction. Rather, we find an action in law to recover money due on a contract of employment, providing for compensation in the form of commissions. More precisely, the instant action is in law to recover the commissions as money had and received to the plaintiff’s use. True, it is an action equitable in nature, but nevertheless governed procedurally by the rules of law. Huebener v. Chinn, supra.
The plaintiff concluded his complaint with a prayer for, among other things, ‘ ‘ such other and further relief as to the court seems meet and equitable in the premises”. But the prayer is no part of the cause of suit or of action, and therefore this phrase can add no strength to a claim for equitable jurisdiction. Elliott v. Mosgrove, 162 Or 507, 91 P2d 852, 93 P2d 1070.
On the other hand, the learned judge below entered a “judgment” in behalf of the plaintiff. Here we find a money judgment at law for $5,746.97, and without any species of equitable relief so common to the decrees in equity suits. Admittedly, these are technical distinctions taken at random from the abstract. [468]*468Still, they seem to reinforce the argument that this was at all times a case in law rather than one in equity. An exhaustive examination of the trial proceedings fails to disclose one instance warranting a conclusion that the court below regarded this case in any manner other than as an action at law.
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[464]*464WABNEB, CJ.
This appeal comes to us from a judgment in what the appellant denominated a suit in equity, but which the trial court apparently thought and treated as an action at law. The plaintiff sought to recover judgment for commissions earned under an oral contract of employment to sell certain machinery and equipment for the defendants, Bookhultz and Biley — co-partners doing business as Geo. E. Zweifel & Co. The case was tried before the court without a jury, and from a judgment in favor of the plaintiff the defendants appealed.
As indicated by the foregoing statement there is a sharp difference of thought whether this is an appeal in equity or in law. It raises a question which necessitates an answer before we proceed further. There is no bill of exceptions. If the appeal is in equity, this is a matter of no importance. But, if the appeal is from an action at law, then appellants’ four assignments of error must be found in and supported by such a record. In the absence of a bill of exceptions the only questions that can be considered on appeal are the sufficiency of the pleadings, the findings of the trial court, and whether the pleadings, or pleadings and findings support the judgment; and if we find them sufficient then our conclusion must be one of affirmation of the circuit court’s judgment. In so doing we have no discretion, La Grande Air Service v. Tyler, 193 Or 329, 330, 237 P 2d 503, and cases cited.
Appellants contend that this is an action for an accounting in equity. They claim equitable jurisdiction because the parties treated it as in equity during the course of the trial. In Paragraph VT of plaintiff’s [465]*465amended complaint we find the only allusion to an accounting. It there appears in these words:
“That the defendants have failed, neglected and refused to account to the plaintiff for the commissions on said sales, although often requested by the plaintiff so to do, and the defendants refuse to pay to plaintiff commissions on said sales and on said business as provided in said agreement between the plaintiff and defendants; that it is necessary that an accounting be had in order that the amounts payable and due to the plaintiff from said defendants under said sales agreement between the plaintiff and the defendants can be determined. ’ ’
This court has long recognized a clear distinction between the right to an accounting at law and the right to an accounting in equity. Kaston v. Paxton, 46 Or 308, 80 P 209, 114 Am St Rep 871, was described as “a suit for an accounting” of rentals received by defendant, but there we held the remedy was one at law for money had and received to the plaintiff’s use, and ruled that the complaint failed to state facts justifying recourse to a court of equity.
In Smith v. Howell, 91 Or 279, 301, 176 P 805, we pointed out that: “Standing alone, the request for an accounting on the part of the plaintiffs will not be sufficient to take the case into equity on the ground solely that the plaintiffs seeking the relief may owe some money to the defendants. ’ ’ The opinion followed this with the statement: “There is no allegation herein as to complexity of accounts between the parties, or in the nature of a discovery, or that a fiduciary relationship exists between the parties, nor any allegation of fraud.”
In Huebener v. Chinn, 186 Or 508, 531, 207 P2d 1136, we approved the distinction made by the Supreme [466]*466Court of Iowa in Williams v. Herring, 183 Iowa 127, 165 N.W. 342, L.R.A. 1918F 798. In the Williams ease the Iowa court held that even though the number of items upon the books and transactions covered by the period of said business might be cumbersome and difficult to present to a jury, yet the accounts were not complicated nor intricate as far as the pleadings disclosed. The court emphasized that the fact that the accounts could be more “conveniently” tried to the court than to a jury was not a ground for equitable jurisdiction, saying that, “ * * * there must be some other ground of equitable cognizance”. Later, in the Huebener opinion we find this statement from Goffe & Clarkener, Inc., v. Lyons Milling Co. 26 F2d 801; “It is entirely clear that mere difficulty of proof does not confer jurisdiction upon equity.”
Upon what basis, then, may a complaint properly lay jurisdiction in equity in an action involving accounts and accounting? As indicated by Smith v. Howell, supra, several grounds for equitable cognizance are immediately apparent. Courts of equity have jurisdiction over trusts, express or implied, for the purpose of compelling an accounting. Courts of equity have jurisdiction to settle accounts whenever a fiduciary relationship exists between the parties and the duty to render an account to one of the parties rests on the other. Templeton v. Bockler, 73 Or 494, 507, 144 P 405, and cases there cited.
An accounting may be had as incidental to other equitable relief. If the accounts proved to be complicated in the instant case, a plain, speedy and adequate remedy was available by recourse to ORS 17.725, resulting in the appointment of a referee to take an account. See Pearson v. Oregon-Washington Railroad & Nav. Co., 135 Or 336, 295 P 201, 296 P 50.
[467]*467A court of equity may also take jurisdiction in a case where an accounting is sought provided it satisfactorily appears that the account is so complex that justice cannot he done without resort to the superior equipment of the equity court. Averments concerning the complexity must be made, and in such specific form that the chancellor can see from the pleadings that he, and not a jury, should try the issues. Huebener v. Chinn, supra; 1 Am Jur, Accounts and Accounting, § 53, p. 301; Pomeroy’s Equity Jurisprudence (2d) § 2357.
We are unable to find in the pleadings of the matter before us any basis for equitable jurisdiction. Rather, we find an action in law to recover money due on a contract of employment, providing for compensation in the form of commissions. More precisely, the instant action is in law to recover the commissions as money had and received to the plaintiff’s use. True, it is an action equitable in nature, but nevertheless governed procedurally by the rules of law. Huebener v. Chinn, supra.
The plaintiff concluded his complaint with a prayer for, among other things, ‘ ‘ such other and further relief as to the court seems meet and equitable in the premises”. But the prayer is no part of the cause of suit or of action, and therefore this phrase can add no strength to a claim for equitable jurisdiction. Elliott v. Mosgrove, 162 Or 507, 91 P2d 852, 93 P2d 1070.
On the other hand, the learned judge below entered a “judgment” in behalf of the plaintiff. Here we find a money judgment at law for $5,746.97, and without any species of equitable relief so common to the decrees in equity suits. Admittedly, these are technical distinctions taken at random from the abstract. [468]*468Still, they seem to reinforce the argument that this was at all times a case in law rather than one in equity. An exhaustive examination of the trial proceedings fails to disclose one instance warranting a conclusion that the court below regarded this case in any manner other than as an action at law.
The oral argument by counsel for the parties makes it clear that they assumed equity had taken jurisdiction of the case below. Counsel for the appellant and respondent, in answer to questions from the court, several times stated that in their opinion this was a suit in equity.
But, we ask, can equitable jurisdiction be conferred by stipulation, or even by mutual acquiescence, when no matter of equitable cognizance was plead ? We think not. The test of the jurisdiction of a court of equity is whether facts exist at the time of the commencement of the action sufficient to confer jurisdiction on the court. If equity has no jurisdiction of the subject matter of the suit, it is clear it could not be obtained by consent or acquiescence of the parties. Small v. Lutz, 34 Or 131, 136, 55 P 529, 58 P 79; Dant & Russell, Inc. v. Pierce, 122 Or 337, 346, 255 P 603. In re Ostlind Mfg. Co., 19 F Supp 836, 838 (Dist. Ct. Or.)
Having noted the absence of a bill of exceptions and finding no assignment challenging the respondent’s pleadings, or the court’s findings, or the sufficiency of the pleadings and findings to support this judgment, we, therefore, have no alternative but to confirm the judgment of the lower court, and it is so ordered.