Epitomized Opinion

An action was brought in the Common Pleas to set aside a deed and for an accounting From the record it appears that Welthy Miller contracted with Fred W. Schultz for the construction of a house for $8,400, on which she had advanced $4,800. Later he abandoned the contract. She paid one Simpkins an additional sum of $8,538.28. A verbal understanding to pay for extras was not disputed. Schultz built a house on an - adjoining lot and conveyed it to .his wife. This conveyance is attacked and judgment for $4,938.28 is sought. Schultz denied the appropriation of Miller payments to the construction of the -second house, and by cross-petition claimed $1,400 due him for extras, damages and superintendence. The common pleas set aside the deed but refused to submit any of,the issues to a jury. Reversing this judgment, the court of appeals held:

Setting aside' the deed bore no relation to the conflicting claims, for money and determined no: right to recover money which under 11379 and 11380 GC. should have been submitted to a jury.