I think the court erred in not granting to the defendant the right to have the cause tried by a jury. When the case was called for trial all of the equitable issues in the case stood admitted. The only controverted issues were those relating to the counterclaim. The counterclaim was obviously one presenting facts in an action at law rather than in equity. An identical case is that of Lehman v. Coulter, 40 N.D. 177, 168 N.W. 724, where the court said: "Where one brings an action to foreclose a chattel mortgage, and the answer admits all the allegations of the complaint, all of the equity matters in such case are disposed of, and there is nothing before the court further to be considered in such equity proceedings; and where the answer, in addition to admitting all the allegations of the complaint in such equity proceeding, pleads two counterclaims for specific amounts for the recovery of money only, and at the time of the trial defendant demands a jury trial, such jury trial cannot be denied to him, and he is entitled to such jury trial as a matter of strict legal right." This language was quoted with approval by this court in Benson-Stabeck Co. v. Farmers' Elevator Co.,66 Mont. 395, 214 P. 600. Other cases of like import are also cited and quoted from with approval in the Benson-Stabeck Case and need not be repeated here.
The defendant's right to a trial by jury, I think, was guaranteed to him by section 23, Article III, of the Constitution, and expressly conferred by section 9327, Revised Codes. (Compare, also, Solberg v. Sunburst Oil Gas Co.,70 Mont. 177, 225 P. 612.)
It cannot be said that there was no issue to be tried by a jury. At the trial evidence was introduced to support the counterclaim on its merits. The evidence was in sharp conflict. *Page 15 The court, however, instead of passing upon the merits thereof, expressly found that the allegation in the answer to the supplemental complaint, to the effect that the defendant reserved the right to litigate the counterclaim, was not true. Defendant's evidence on this point was vague and indefinite, but he maintained that he made no agreement regarding the settlement at all. It should be said, moreover, that he testified that he did not read the instruments pleaded in plaintiff's reply as releases under each policy, but that an instrument was read to him by an agent of plaintiff purporting to be a nonwaiver by plaintiff of timely proof of loss, and that these were the instruments that he thought he was signing.
Both parties contend here that the settlement agreement pleaded in the supplemental complaint did not amount to an accord and satisfaction. The question is argued at length in the brief of defendant because of the belief on the part of defendant's counsel that the court by its findings and conclusions so treated it. If it is treated as an accord and satisfaction, it still presents issues in an action at law and not in equity, and defendant in that event also would be entitled to a jury trial. (1 C.J. 583.)
I think the judgment should be reversed and the cause remanded for a new trial before the court sitting with a jury.