a counterclaim for the recovery ofand interest upon one of said notes. The cause was Nike Free noticed for trial by plaintiff as a jury cause and by defendant as an Ralph Lauren Outlet equity cause triable by the court without a jury. At the beginning of the trial defendant moved Polo Ralph Lauren Outlet that the cause be tried by the court without a jury on the ground that the cause of action pleaded and the relief demanded by plaintiff is cognizable by a court of equity. This motion was granted and Ralph Lauren Outlet Online appellant duly excepted to the ruling and the cause was tried by the court without a jury. Findings The North Face Outlet and Judgment were in favor of defendant and plaintiff appeals. The first contention of appellant Is that the court erred In ordering the cause to Nike Max Air be tried as an equity case before the court without a Jury. It Is appellants contention that the complaint alleged a cause of action on the law side of the court. As pointed out by this court in Sweeney v. United Underwriters CoS. DN. W there Is a substantial distinction between an action based upon a past rescission of a contract and an action for rescission of a contract. A cause of action for the recovery of property based on a completed rescission of contract is generally a law action triable by a jury while an action for rescission that is one which seeks the establishment of a rescission as a The North Face Outlet Store result of the action is on the chancery side of the court. An action for rescission is the same as an action for cancellation which might be properly termed an action for rescission and cancellation. There are some statements of fact in the complaint which treat the contract in question as having been wholly rescinded prior to the commencement of the action; but such statements are Nike Argentina in conflict and inconsistent with other portions of the complaint. The appellant by his demand for relief and other allegations of fact has placed on this complaint the construction that it is a complaint in equity ior the rescission and cancellation of the contract. The trial court was therefore not North Face Outlet Store in error in holding the complaint to state a cause of action on the equity or chancery side of the court.©For other cases Bee same topic and KEYNUMBER la all KeyNumbered Polo Outlet Online Digests and Indexes Rehearing denied NovemberThe counterclaim of defendant alleged another cause of action in which if issues were raised thereon both parties were entitled to a jury trial as a matter of right The trial court might have properly ordered the issues arising on the complaint to have been tried by the court and the issues Nike Free Run if any arising under the counterclaim and reply thereto to have been tried by a jury. Lelsch v. BaerS. DN. W Neither party moved the court for such Nike Max Air 90 a separation of the issues and no error can therefore be based on the proposition that the Jury and chancery issues were not separated. The reply of plaintiff admitted all the allegations of the counterclaim excepting that it denied there was anything owing to respondent on said note. This was merely the denial of a conclusion of law. The trial court found that there was no fraud on the part of respondent in the making of said contract. The evidence on which this finding was based is not contained in the record and counsel for appellant on argument conceded that the question of fraud raised by the reply to the counterclaim is not in issue on this appeal. If there was no fraud In the procuring of said contract and notes it clearly appears that if appellant was not entitled to have said note canceled under the complaint North Face Outlet he had no defense thereto under his reply to the counterclaim there being no Issue raised by the counterclaim and reply outside the question of fraud tobe tried by a jury. Hence appellant by no possibility could have been prejudiced by the trial to the court Nike Shop of the issues raised by the complaint and answer as all the issues raised