I concur in the decision reversing the case and remanding the cause for a new trial. My reasons therefor, briefly stated, are as follows:
The appellants assigned as error the trial court’s refusal to submit, at their written request, to the jury twenty-two interrogatories prepared by them, for the alleged reasons the said interrogatories were necessary to decide the issues between the parties, and the court by such refusal denied the appellants the right to have the issues of fact submitted to the jury; in other words, denied the defendants due process of law.
A careful examination of the said requested interrogatories convinces me that they are such in substance as do not tend to a determination of the controverted questions of fact arising in the course of the trial, with the exception of the ninth and tenth. The ninth interrogatory is thus stated:
“Did Smith promise to pay Mosbarger on said contract whenever Mosbarger should demand pay?”
This assumes that a contract is established without dispute. It assumes the disputed issue as settled. The interrogatory was properly rejected for that reason.
The tenth interrogatory is thus stated:
“Did Smith promise to pay the entire purchase price of the property involved within one year?”
*30This goes to the gist of the issue. The answer to this interrogatory would tend to determine the ease. The court submitted no interrogatory of the like import as this requested by defendants.
“In all actions where equitable relief is sought the court shall, if a jury be demanded by either party, submit to the jury all controverted questions of fact. Interrogatories shall-be framed and approved by the court presenting such questions, and each interrogatory shall be confined to a single question of fact and shall be so framed as to be answered by yes or no, and shall be so answered where yes or no is possible. In every such case the verdict shall be binding upon the court in the determination of the action, unless set aside and a new-trial granted on motion made for that purpose.” Paragraph 542, Civil Code of Arizona 1913.
This statute calls for a special verdict in equity actions. This is an action where equitable relief is sought, and, a jury having been demanded, the court was required to instruct the jury to return a special verdict.
Paragraph 538 of the Civil Code of Arizona of 1913 defines the special verdict, its office and the court’s duty upon receiving such verdict, as follows:
“The special verdict must find the facts as established by the evidence, and not the evidence by which they are established, and the findings must be such as that nothing remains for the court but to draw from such facts the conclusions of law. ’ ’
These statutory requirements were not substantially observed by the court, and such failure constitutes reversible error. This necessarily includes my opinion that the complaint is sufficient in substance to authorize the granting of relief to plaintiff.
I state no opinion relative to the other matters in support, of the judgment involved in the appeal.