#### Mattucci et al. *v.*Sutliff.

*Court of Appeals*— Jurisdiction *on appeal*— Reformation *of contract and damages for false representations.*

Plaintiff sued for damages ensuing from false representar tions made respecting two tracts of coal land, which defendants agreed to sell and' convey to the’ plaintiff by a written contract. One of the tracts was unintentionally omitted from said contract, but on the following day defendants conveyed or caused to be conveyed both tracts to the plaintiff. Plaintiff’s action included two causes of action, one seeking reformation of the contract so as to include the omitted tract and the other asking damages for false representations. The trial court reformed the contract and rendered judgment for damages. Defendants appealed to the Court of Appeals.

*Held:*Upon development of the foregoing facts the Court of Appeals did not err in refusing reformation of the contract or in dismissing the appeal as to the second cause of action.

(No. 18442

Decided June 17, 1924.)

Error to the Court of Appeals of Belmont county.

This action originated in the court of common pleas, wherein 'Sutliff sued the plaintiffs in error for equitable relief and for damages. Sutliff’s petition contained three causes of action, but since the third cause of action was decided in favor of the plaintiffs in error it need not be considered here. In his petition Sutliff alleged that plaintiffs in error, through an authorized agent, agreed to sell and convey to bim certain tracts of coal property known as the “Porter” tract and the “Bohill” tract. This agreement was made on January 8, 1918. The legal *34title to the Bohill tract was at that time in the mother of Mattucci, one of the plaintiffs in error, and adjoined the Porter tract owned by the other two plaintiffs in error, upon which mining operations had been conducted, with a mine entry projected into the Bohill tract. Both of these tracts had been listed with an agent for sale. It is alleged that on the 8th day of January, 1918, the authorized agent of plaintiffs in error agreed to sell and convey both of these tracts to the defendant in error, including certain personal property and equipment belonging to the Porter mine, for the sqm of $9,600. It is alleged that the Bohill tract, by mutual mistake of the parties, was omitted from the contract between the parties, for which reason Sutliff, in his first cause of action, sought a reformation of the contract so as to include the Bohill tract therein.

In the se.oond cause of action Sutliff alleged that the plaintiffs in error, in order to induce him to buy such land and personal property, including the Bohill tract, made various false representations relating to the condition of the mine, entry and pillars, and also as to the amount of unmined coal, etc. He asked damages in the sum of $10,000 against the plaintiffs in error as a result of the false representations so made. Witt and Gentile, two of the plaintiffs in error, filed separate answers, each containing a general denial.

All the parties waived trial by jury, and, as stated in the journal entry of the trial court, “the law as well as the equitable questions were submitted to the court. ’ ’ The court found on the issues joined in favor of the plaintiff, Sutliff, and *35made certain specific findings of fact. It found that the defendants, through their duly authorized agent, had made false representations as alleged in the petition, and rendered a judgment in favor of Sutliff for the sum of $3,600. In respect to the first cause of action, praying for reformation, the court found that on January 8, 1918, the plaintiffs in error agreed to sell and convey both of the tracts, but that-the Bohill tract, although intended to be conveyed, was by mutual mistake of the parties omitted from the written contract. Upon the trial of the cause it was not disputed that Sutliff acquired on the following day, to wit, January 9, 1918, the legal title to both the Porter and Bohill tracts by deeds of general warranty, the Bohill tract being conveyed upon that day by the mother of Mattucci, who had the legal title thereto. Under that finding that the Bohill tract was actually acquired by Sutliff in pursuance of the agreement as intended by the parties the trial court not only rendered its judgment for damages aforesaid, but decreed that the memorandum of agreement should be reformed so as to include the Bohill tract.

Plaintiffs in error thereupon appealed the cause to the Court of Appeals, which refused a reformation of the contract. It appears from its opinion that the Court of Appeals determined that reformation of the contract was not necessary, and, so finding, held that it was without jurisdiction to determine the action for damages founded upon plaintiff’s second cause of action. Error was prosecuted to this court from the judgment of the Court of Appeals.

*36*Mr. Clifford L. Belt*and *Mr. R. W. Schertzer,*for plaintiffs in error.

*Mr. C. E. Timberlahe*and *Messrs. Heinlem, Lynch <& James,*for defendant in error.

Jones, J.

Although the first cause of action contained in Sutliff’s petition appeared to be upon its face one for equitable relief, when the cause was submitted ,to the Court of Appeals that court held that reformation of the written contract was not necessary for the reason that the Bohill tract had actually been conveyed to the plaintiff in accordance with the intention of the parties. In view of that fact it was not necessary for the plaintiff to seek any equitable relief, and, when the case was appealed to the Court of Appeals, that court properly refused reformation. The case actually presented and tried in the trial court was one wherein damages were sought from the plaintiffs in error because of false representations made by them to the plaintiff below as to the character of the mining property which they induced him to buy.

The proceeding in the Court of Appeals developed the fact that the jurisdiction on appeal there sought was a pretense, in view of the facts presented and conceded, and that no equitable relief by plaintiff below was necessary in order 'to recover the damages sought.

“Otherwise, as the courts have frequently pointed out, a litigant, by a pretended claim for equitable relief, might deprive his opponent of adyantages incident to an action at law, as for *37instance, his constitutional right of trial by jury.” Í0 Ruling Case Law, p. 373.

Let us assume that the plaintiff below, having-failed in his action, had appealed his cause to the Court of Appeals as a chancery case. It cannot be doubted that, then, although he might invoke the jurisdiction of a chancery court upon the face of his pleading, a disclosure in that court to the effect that the equitable relief demanded by him was pretended and not real would impel it to refuse reformation of the contract.

On the showing made in the Court of Appeals, it developed that the case was solely an action at law for damages, and that court properly refused to entertain jurisdiction upon that question. In the trial court, a jury having been waived, the second cause of action for damages was fully heard and determined by that court, which found in favor of the plaintiff below, and in view of this record that judgment can be attacked only by proceedings in error.

The judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Robinson, Matthias, Day, and Allen, JJ., concur.

Wanamaker, J., not participating.