Fraley vs. Bentley, et al.
submitted their defense to the cognizance of the court, and cannot now raise the objection that plaintiff had an adequate remedy at law. (2 Abb. N, Y. Dig., 555, §§ 74-5-7 and 90-2; Truscott v. King, 6 N. Y., 147; Read, 165; 4 Abb. Dig., 433, § 16; 1 Abb. Dig., 135, §§ 118, 119; Minots' Dig.. 250, § 45; 1 Abb. U. S. Dig., 266, §§ 1, 2, 3; id., 60, § 210; Ohio Dig., 359, § 123.) Defendants below failing to make any objection to the equity jurisdiction of the court, it was competent for the court to decree damages to plaintiff in lieu of the equitable relief prayed for in the complaint. (9 U, S. Dig., 153, §§ 567, and 155, § 30; 17 N. Y., 491; 18 U. S. Dig. 680, § 93; 19 U. S. Dig., 638, §§ 15, 16, 17; 26 U. S. Dig., 181, § 10; 29 U. S. Dig., 597, §§ 60 and 299, § 154; 1 Abb. U. S. Dig., 266, §§ 3 and 59, § 198.) The record does not show but this action was tried on the law side of the court. Plaintiff below asks a judgment for damages, and the record shows he got such judgment. The complaint is sufficient to sustain an action in law or equity. The issue raised by the answer .is that of addi- tional consideration, and the most of the testimony is to that issue. Parties can waive a trial. (1862 Code, 90, §§ 260 and 276.) Record does not show any objection to trial by court, and the presumption is a jury trial was waived. (17 N. Y., 491-8; Wait's An. Code, 444, n. i,) And the decision of the court not being required to be in writing, (1862 Code, § 277,) it is presumed the court found the facts which support the judgment, for every presumption is in favor of the judgment. (1 Abb. U. S. Dig., 62, § 254.) And if it were error to render a judgment for damages in an equity suit, and the record shows that such judgment was rendered, but does not show that it was tried on the equitjj side of the court, it will be presumed to have been tried on the law side of the court if, thereby, no error arise.
Barnes, J.—This suit, or action, is brought into this court by appeal, prosecuted by defendants below. The first import- ant question presented is, as to the character of this suit or action.
The petition has the substantial requisites of a bill in chan- cery, and an action at law. So, too, the summons is for
