American Falls Milling Co. v. Standard Brokerage & Distributing Co., 248 F. 487 (8th Cir. 1918)

MUNGER, District Judge.

Appellee was a merchandise brokerage company having its place of business at Salt Lake City, Utah, and appellant was a milling company having its mill in Idaho. The broker^ age company, hereinafter referred to as plaintiff, brought suit against the-milling company, hereinafter called defendant, alleging that it had a contract for the exclusive sale of defendant’s products in Utah, which the defendant had violated by making sales directly to customers, and praying for an injunction against further violation of the contract and for damages because of the sales defendant had made. A decree was rendered denying the in j inaction, but awarding damages to plaintiff because of sales made by the defendant. None of the testimony given on the trial is preserved in the record, and the questions presented arise upon the face of the pleadings and decree.

[1, 2] The denial of the injunction refused the only equitable relief asked by plaintiff. Under the allegations of the pleadings, this denial must be taken as a finding that the proofs did not entitle plaintiff to an injunction when the bill was filed, as there were no allegations showing any change of status after the bill was filed. The relief that is asked by the plaintiff, other than the injunction, is for damages for breach of contract, a purely legal demand. Section *267* of the Judicial Code provides that:

Appellant complains because it was entitled to the judgment of a jury on the issues found by the court. When a cause of action cognizable at law is entertained in equity, because of some equitable relief sought by the bill, and the proofs fail to establish the right to such equitable relief at the time the suit was brought, the court is without jurisdiction to proceed further and to try the issues at law. Mitchell v. Dowell, 105 U. S. 430, 432, 26 L. Ed. 1142; Russell v. Clarke’s Executors, 7 Cranch, *69, *91, 3 L. Ed. 271; Kramer v. Cohn, 119 U. S. 355, 357, 7 Sup. Ct. 277, 30 L. Ed. 439; Buzard v. Houston, 119 U. S. 347, 354, 7 Sup. Ct. 249, 30 L. Ed. 451; Lewis v. Cocks, 23 Wall. 466, 469, 23 L. Ed. 70; Clark v. Wooster, 119 U. S. 322, 325, 7 Sup. Ct. 217, 30 L. Ed. 392; Linden Inv. Co. v. Honstain Bros. Co., 221 Fed. 178-181, 136 C. C. A. 121; Alger v. Anderson (C. C.) 92 Fed. 696-710; Lewis Pub. Co. v. Wyman (C. C.) 168 Fed. 756, 762; 1 Pom. Eq. Jur. (3d Ed.) § 237; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. 701, 706, 72 C. C. A. 195; Van Raalt v. Schneck (C. C.) 159 Fed. 248, 251. See, also, case note in 19 L. R. A. (N. S.) 1064, 1066. The action was not maintainable under equity rule 23 (198 Fed. xxiv, 115 C. C. A. xxiv), because that rule only applies to a case wherein a court of equity has jurisdiction, and does not confer jurisdiction of actions cognizable at law. Linden Inv. Co. v. Honstain Bros. Co., supra; Vosburg Co. v. Watts, 221 Fed. 402-408, 137 C. C. A. 272.

The decree of the lower court will be affirmed as to the denial of the injunction, but otherwise reversed, with directions to transfer the trial of the issues relating to damages to the law side of the court, in accordance with the provisions of equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv).