WADE, District Judge.
On January 18, 1929, the plaintiffs, Charles B. Petty and 'Maggie C. Petty, his wife, entered into a written contract with the defendant, Dean A. Clark, to sell 'Clark certain real ■estate known as the “drugstore” property at Hurricane, Utah. The purchase price was $4,800, payable in monthly ■installments of $50 each, without interest, for a period of eight years. This contract — together with Clark’s promissory note to plaintiffs for the purchase price and plaintiffs’ warranty deed conveying the property to Clark — was deposited in escrow with the State Bank of Hurricane. The
Bank was orally instructed to surrender the papers to Clark when he completed the payments.
On November 12,1932, Clark was behind on his payments, whereupon the parties to the contract made a written modification of the contract whereby the monthly payments were reduced from $50 (as provided in the contract) to $25 per month, effective February 1, 1932 and to continue for a period of two years. On June 28, 1938 — five months after all payments were due under the modified provisions of the contract — 'Clark completed the payment of $4,800, without interest, and the Bank surrendered to him the contract, note and deed. He immediately recorded the deed.
The contract, as originally drawn, contained the following provision:
“It is agreed that no interest shall he charged until after maturity of the respective installments, and the second party shall be given forty days grace on any payment, and the past due payments shall bear interest at the rate of one per cent per month until paid.”
When plaintiffs learned of the surrender of these papers to Clark, they claimed that under the above provision interest had accumulated on all installments which were not paid, at maturity, and therefore there was a balance owing them under the contract. They demanded that Clark either pay such balance or return the papers to the Bank. This Clark refused to do. He claimed that prior to the delivery of the contract, Mr. Petty and he had orally agreed that there should be no interest and when he discovered the provision for interest after maturity, he refused to enter into the contract with the interest provision in it. Whereupon it was. agreed that this provision should be stricken from the contract, and Mr. Petty drew x’s through that paragraph; that later the papers were delivered to the Bank with this interest paragraph x-ed out. Clark contends, therefore, that, by reason of these circumstances, he owes no balance on the contract.
Plaintiff brought this action to recover the balance owingon the contract. He asked that the same be declared a lien
on the property which he sold, and that this lien be foreclosed. At the trial, the only issue of fact was whether the interest clause was a part of the contract at the time of its delivery. This issue was submitted to a jury by special interrogatories. The jury found — by a vote of six to two — that this paragraph was not a part of the contract. The court, however, was of the opinion that this is an equity case; that the decision of the jury was not binding, but only advisory and that the paragraph in question was a part of the contract at the time of delivery. The court made findings to that effect and entered judgment against the defendant for $260, with interest thereon at one per cent per month from January 1, 1938, $200 attorney’s fees, and costs. The court also declared this judgment to be a lien on the property in question and ordered the lien foreclosed in case judgment was not satisfied. From this judgment defendant appealed, claiming that the trial court is bound by the findings of the jury. There is ample evidence to sustain the findings of the trial court and, unless the jury’s decision is binding, the judgment must be sustained.
The Revised Statutes of Utah 1933, provide:
“104-23-5. Issues of Fact, How Tried.
“In actions for * * * money claimed as due upon contract * * * an issue of fact may be tried by a jury, unless a jury trial is waived or a reference is ordered as provided in this code. * * * In other cases issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury or referred to a referee as provided in this code.”
This case comes squarely under the provisions of this section of the statutes. It is an action for money claimed as due upon contract, and the defendant did not waive his right to trial by jury. There was sufficient evidence to justify the jury’s findings; the findings of the jury are, therefore governing in the case.
In the case of
Norback
v.
Board of Directors of Church Exten. Soc.,
84 Utah 506; 37 P. 2d 339, a case where the
right of a party to a trial by jury was raised, this court quoted from the above section of the statute, stated that the law was adopted from the Calif. Code of Civil Procedure, § 592, and held that thereunder the plaintiff was entitled to a jury trial.
Newman
v.
Duane,
89 Cal. 597, 27 P. 66;
Reiner
v.
Schroeder,
146 Cal. 411, 80 P. 517.
The instant case was argued exclusively on the question of whether a law action is here involved, or one in equity. The same conclusion must be reached even if the case be considered only from that standpoint. At common law, law and equity were administered by different courts. In courts of law, the parties were entitled to a jury to determine issues of fact, but in courts which administered ■equity, there was no jury. Often the courts of equity required parties to litigate certain issues in the law courts before equity would intervene, and in many instances it required two suits to determine what is now determined in only one suit.
Under the common-law system, two suits would have been required to determine this action: (1) a suit in the law court to determine the amount owing under the contract; (2) if the judgment for that amount were not paid, the plaintiff would be required to go into a court of equity to foreclose the defendant’s equity of redemption.
Under the Utah Constitution and Statutes, there is but one form of civil action — the same court administers both law and equity, often in the same action. Constitution of Utah, Article VIII, § 19; Revised Statutes of Utah, 1933, 104-1-2. In order to prevent more than one action in the foreclosure of mortgages, the legislature in 104-55-1 expressly provides:
“There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage * *
The legislature thus contemplated the joining of an action at law and a suit in equity in the same action.
In
Norback
v.
Board of Directors of Church Exten. Soc.,
supra, 84 Utah page 514, 37 P. 2d page 339, this court held:
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WADE, District Judge.
On January 18, 1929, the plaintiffs, Charles B. Petty and 'Maggie C. Petty, his wife, entered into a written contract with the defendant, Dean A. Clark, to sell 'Clark certain real ■estate known as the “drugstore” property at Hurricane, Utah. The purchase price was $4,800, payable in monthly ■installments of $50 each, without interest, for a period of eight years. This contract — together with Clark’s promissory note to plaintiffs for the purchase price and plaintiffs’ warranty deed conveying the property to Clark — was deposited in escrow with the State Bank of Hurricane. The
Bank was orally instructed to surrender the papers to Clark when he completed the payments.
On November 12,1932, Clark was behind on his payments, whereupon the parties to the contract made a written modification of the contract whereby the monthly payments were reduced from $50 (as provided in the contract) to $25 per month, effective February 1, 1932 and to continue for a period of two years. On June 28, 1938 — five months after all payments were due under the modified provisions of the contract — 'Clark completed the payment of $4,800, without interest, and the Bank surrendered to him the contract, note and deed. He immediately recorded the deed.
The contract, as originally drawn, contained the following provision:
“It is agreed that no interest shall he charged until after maturity of the respective installments, and the second party shall be given forty days grace on any payment, and the past due payments shall bear interest at the rate of one per cent per month until paid.”
When plaintiffs learned of the surrender of these papers to Clark, they claimed that under the above provision interest had accumulated on all installments which were not paid, at maturity, and therefore there was a balance owing them under the contract. They demanded that Clark either pay such balance or return the papers to the Bank. This Clark refused to do. He claimed that prior to the delivery of the contract, Mr. Petty and he had orally agreed that there should be no interest and when he discovered the provision for interest after maturity, he refused to enter into the contract with the interest provision in it. Whereupon it was. agreed that this provision should be stricken from the contract, and Mr. Petty drew x’s through that paragraph; that later the papers were delivered to the Bank with this interest paragraph x-ed out. Clark contends, therefore, that, by reason of these circumstances, he owes no balance on the contract.
Plaintiff brought this action to recover the balance owingon the contract. He asked that the same be declared a lien
on the property which he sold, and that this lien be foreclosed. At the trial, the only issue of fact was whether the interest clause was a part of the contract at the time of its delivery. This issue was submitted to a jury by special interrogatories. The jury found — by a vote of six to two — that this paragraph was not a part of the contract. The court, however, was of the opinion that this is an equity case; that the decision of the jury was not binding, but only advisory and that the paragraph in question was a part of the contract at the time of delivery. The court made findings to that effect and entered judgment against the defendant for $260, with interest thereon at one per cent per month from January 1, 1938, $200 attorney’s fees, and costs. The court also declared this judgment to be a lien on the property in question and ordered the lien foreclosed in case judgment was not satisfied. From this judgment defendant appealed, claiming that the trial court is bound by the findings of the jury. There is ample evidence to sustain the findings of the trial court and, unless the jury’s decision is binding, the judgment must be sustained.
The Revised Statutes of Utah 1933, provide:
“104-23-5. Issues of Fact, How Tried.
“In actions for * * * money claimed as due upon contract * * * an issue of fact may be tried by a jury, unless a jury trial is waived or a reference is ordered as provided in this code. * * * In other cases issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury or referred to a referee as provided in this code.”
This case comes squarely under the provisions of this section of the statutes. It is an action for money claimed as due upon contract, and the defendant did not waive his right to trial by jury. There was sufficient evidence to justify the jury’s findings; the findings of the jury are, therefore governing in the case.
In the case of
Norback
v.
Board of Directors of Church Exten. Soc.,
84 Utah 506; 37 P. 2d 339, a case where the
right of a party to a trial by jury was raised, this court quoted from the above section of the statute, stated that the law was adopted from the Calif. Code of Civil Procedure, § 592, and held that thereunder the plaintiff was entitled to a jury trial.
Newman
v.
Duane,
89 Cal. 597, 27 P. 66;
Reiner
v.
Schroeder,
146 Cal. 411, 80 P. 517.
The instant case was argued exclusively on the question of whether a law action is here involved, or one in equity. The same conclusion must be reached even if the case be considered only from that standpoint. At common law, law and equity were administered by different courts. In courts of law, the parties were entitled to a jury to determine issues of fact, but in courts which administered ■equity, there was no jury. Often the courts of equity required parties to litigate certain issues in the law courts before equity would intervene, and in many instances it required two suits to determine what is now determined in only one suit.
Under the common-law system, two suits would have been required to determine this action: (1) a suit in the law court to determine the amount owing under the contract; (2) if the judgment for that amount were not paid, the plaintiff would be required to go into a court of equity to foreclose the defendant’s equity of redemption.
Under the Utah Constitution and Statutes, there is but one form of civil action — the same court administers both law and equity, often in the same action. Constitution of Utah, Article VIII, § 19; Revised Statutes of Utah, 1933, 104-1-2. In order to prevent more than one action in the foreclosure of mortgages, the legislature in 104-55-1 expressly provides:
“There can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage * *
The legislature thus contemplated the joining of an action at law and a suit in equity in the same action.
In
Norback
v.
Board of Directors of Church Exten. Soc.,
supra, 84 Utah page 514, 37 P. 2d page 339, this court held:
“Where the issues are legal issues, the fact that equitable relief maybe prayed for, to carry into effect the judgments based upon the legal issues, ‘is not sufficient to deprive either party of his rights to have the legal issues submitted to a jury.’
State ex rel. Hansen
v.
Hart,
26 Utah 229, 72 P. 938, 939.”
In the present case the only disputed issue of fact in the case, and the one which was submitted to the jury, is whether the interest paragraph was a part of the contract when it was delivered. That issue was a part of plaintiff’s main action to recover money owing under the contract, which action is clearly an action at law. The mere fact that plaintiff demanded equitable relief, to wit: the foreclosure of his lien — would not deprive the defendant of his right to have the issue of fact determined by a jury.
We have carefully considered the other objections raised by each of the parties hereto and are satisfied that the trial court committed no error in these matters.
The case is therefore remanded to the district court, with instructions that a new trial be granted. Costs to appellants.
MOFFAT, C. J. and LARSON, J., concur.