Stow v. Groton Savings Bank

FOSTER, J. This action is in three counts claiming a *194 breach of contract and conversion. The complaint is skih fully drawn so as to set forth issues of law and not issues in equity, thus apparently giving the plaintiff the constitutional right to a trial by jury. The first count is by reference made a part of the second count and of the third count. Upon close examination of pleadings and the exhibits at' tached to the complaint, we find that while it is true that issues of law are presented, it is equally true that the predom' inant issue presented is whether or not the defendant should account to the plaintiff and, if so, the rendering of such account. An accounting by the defendant is necessary in order that any judgment of a proper amount be rendered in favor of the plaintiff, or in order that a proper judgment be ren' dered in favor of the defendant. An action for an accounting should be tried to the Court and not to the jury. General Statutes, Revision of 1930, §5624. Justice to plaintiff arid defendant requires that this case be tried to the Court and not to the jury. No judge would be able to decide this case properly without having before him a transcript of the evidence; much less would a jury be able to render a proper decision from memory of the evidence. As was said by our Supreme Court of Errors: “No action for an accounting, or one of this character, should be tried to the jury. It imposes upon a jury an impossible task, to expect them to carry in memory the details of a case of this character. It is unfair to a litigant to have his case determ' ined by a tribunal which cannot fulfil that duty with accuracy or justice, however intelligent and desirous of doing their full duty the tribunal may be.” Bennett vs. United Lumber & Supply Co., 110 Conn. 536, 538. In this case there are certain issues that might be tried to the jury; but there are certain other issues that should only be tried to the jury by consent of the parties or order of Court. The plaintiff filed a general claim that the case be placed on the jury docket. The Court, upon motion of the defend' ant, struck the case from the jury docket. No claim has been made that certain specific issues of a legal nature as dis' tinguished from the equitable nature be tried to the jury. The Court has made no order that the entire case be placed upon *195 the jury docket, nor has the defendant consented to such disposition. The motion that the case be restored to the jury docket is denied.