O'leary, Exr. v. Burnett

This cause is submitted on motion of plaintiff-appellee to dismiss the appeal on questions of law and fact; also on motion of plaintiff-appellee to strike from the files the answer brief of defendant-appellant.

The point is made that this is not a chancery case. In his petition the plaintiff alleges that the defendant orally agreed to pay plaintiff 5 per cent of the gross sale price, at least $500 each calendar year, on all motors manufactured and sold by the defendant for plaintiff's decedent; that the defendant agreed to use the trade name, "Rotor," on all products which incorporated the motor; that defendant manufactured and sold motors in large quantities; that the defendant failed to use the trade name, "Rotor," as agreed; and that the defendant made certain payments but refused to make further payments and has refused the plaintiff an accounting. The plaintiff prays for judgment against defendant in the amount of $50,000 as damages for failing to use the trade name, for an accounting of all motors sold and for a judgment in an additional amount of money as may be disclosed by such accounting to be due.

The defendant filed an answer in the nature of a general denial and set up the statute of frauds and statute of limitations.

The character of the action must be determined by the pleadings and the issues presented therein. Whether the action is one at law or in chancery is determined by the primary relief sought. There is no allegation showing, and it is not contended, that a fiduciary or trust relation existed between the parties. It appears that the relation was that of debtor and creditor. The action is essentially one at law for the recovery of money only. The primary relief sought is legal and the equitable redress is merely incidental.

An action for the recovery of money only is an action at law, and where no fiduciary or trust relation existed between the parties, such action will not be converted into an action in chancery on the ground that plaintiff has no knowledge as to the true amount due and requests an accounting to determine such amount. In support of this principle of law the following authorities are cited: In re Estate of Stafford, 146 Ohio St. 253, 261,65 N.E.2d 701; Nordin v. Coulton, 142 Ohio St. 277,51 N.E.2d 717; Complete Building Show Co. v. Albertson, 99 Ohio St. 11,121 N.E. 817; Chapman v. Lee, 45 Ohio St. 356,13 N.E. 736; Relief Assn., Union Works, Carnegie Steel Co., v.Equitable Life Assur. Soc. of the United States, 63 Ohio App. 91,95, 25 N.E.2d 352; Fitzgerald v. Cleveland CadillacCo., 17 Ohio App. 12, 15; Bonnell v. B. T. Metals Co., 52 Ohio Law Abs., 1.

The motion to dismiss the appeal on questions of law and fact will be sustained. The case will be retained as an appeal on questions of law. An order will be made respecting the filing of a bill of exceptions, assignment of error and brief in conformity to the provisions of Supplement to Rule VII of the Courts of Appeals.

The defendant-appellant failed to file answer brief within ten days after receipt of motion and supporting brief as required by Supplement to Rule III of the Courts of Appeals. The record shows that defendant-appellant's answer brief was filed 18 days thereafter but contained no acknowledgment that a copy had been given to opposing counsel as required by Supplement to Rule III. This rule serves a salutary purpose and was adopted by the court to expedite the disposition of preliminary motions and demurrers. It must be observed that there is no penalty provided for failure to comply with the rule such as is found in Rule VII. The rule provides that when the ten-day period has expired the motion or demurrer together with the briefs which are then on file shall be transmitted by the clerk to the court for disposition. In practice, counsel who fails to file an answer brief in time may be penalized by his own delay in presenting his brief to the court before a disposition is made of the matter.

The motion to strike is overruled.

Motion overruled.

MILLER, P. J., HORNBECK and WISEMAN, JJ., concur.