#### Fritsch, Respondent, vs. Kornely, Appellant.

*April 6*

May *3, 1927.*

*Trial: Action to recover money only: Issue for jury: Fraud.*

An action to recover damages for fraud in inducing plaintiff to surrender a note and mortgage for stock in a corporation is *held*to present an issue of fact for the recovery of money only, so as to entitle defendant toa jury trial, under sec. 270.07, Stats.

Appeal from a judgment of the municipal court of Outa-gamie county: Fred V. Heinemann, Acting Judge.

*Reversed.*

Action to recover damages for alleged fraud in inducing plaintiff to surrender a note and mortgage on Montana lands for stock in the Twin City Land Company. Defendant made a loan of $1,500 for plaintiff secured by a mortgage on Montana lands. The interest was paid for a time and thereafter payment was discontinued. On March 6, 1923, plaintiff went to defendant’s office and stated she must have some interest paid and asked the defendant to have the mortgage foreclosed, which he promised to do. She gave him the note, mortgage, abstract of title, and insurance policy. On September 11, 1923, the defendant represented to plaintiff that he had secured $75 on the loan and gave her a check for this amount, and also handed her another paper which she claims he did not explain to her. She could not read or write and did not learn the nature of the other paper handed to her by defendant till May 6, 1924, when she consulted her present attorneys and learned that she had been given seven shares of Class A stock in the above mentioned land company' in lieu of her note and mortgage. Her attorneys demanded the return of the note and mortgage, and upon a refusal the present action was begun. Plaintiff sets up the above facts in apt language in her complaint; tenders in court the stock certificate and $75 received with interest *55on same; alleges that defendant converted her note and mortgage, and asks for damages in the sum of $1,500 and interest.

At the beginning of the trial the defendant asked for a jury trial, which was denied, and the court tried the case, found for the plaintiff in the. sum of $900 and interest, and entered a judgment accordingly. Defendant appealed.

The cause was submitted for the appellant on the brief of *Bradford & Bradford*of Appleton, and for the respondent on that of *Morgan & Johns*of Appleton.

Vinje, C. J.

An issue of fact for the recovery of money only is triable by a jury. Sec. 270.07, Stats. We have just such an issue-in this case. Plaintiff claims she was induced to part with her note and mortgage by fraud and asks for a money judgment as damages. She rescinds the alleged agreement by tendering in court what she received, but the only judgment responsive to the allegations of the complaint as well as to the prayer for relief is one for money only. No equitable relief was asked and none could be given. Such a case presented an issue of fact for a jury, and defendant could not be deprived of his right to a jury trial. *Stockhausen v. Oehler,*186 Wis. 277, 201 N. W. 823.

Defendant urges that the evidence shows' he is entitled to a judgment dismissing the complaint upon the merits. There is a sharp conflict in the evidence upon the question of fraud and it presents a jury issue.

*By the Court.*— Judgment reversed, and cause remanded for further proceedings according to law.