Epitomized Opinion

Leuthold sued Albright on a written contract providing for payment of compensation for services as attorney in obtaining for Albright an interest in property in expectancy. Albright alleged that Leuthold was guilty of fraud and undue influence and she alleged mental incapacity on her part. At the trial, although neither party demanded a jury, one was impaneled ,and the ease was tried as though triable to a jury. 'The court charged the jury that if Albright had proved by a preponderance of the evidence the allegations of mental incapacity, fraud or undue influence a verdict for Albright should be found. The jury returned a verdict for defendant and the court entered judgment on the verdict. In reversing the judgment, the Court of Appeals held

1. It is settled beyond discussion that in order to set aside a contract the evidence must he clear and convincing and it was therefore error for the court to charge “if defendant has proved by a preponderance of the evidence the allegations of mental incapacity, fraud or undue influence, a verdict should be rendered for defendant.”

2. Where an equitable defense has been pleaded to an action at law such equitable issue should be first disposed of as in a court of equity after which, if an issue at law remains, it is triable to a jury, 66 OS. 360, 366. It is the right of the court to submit to a jury any or all of the facts for determination, which determination however is merely advisory to the court, which mav adopt or disregard the jury’s conclusion, but in this case the court did not adjudicate the equitable issue.