This action was therefore one at law, and under §11379 GC, the case was triable to a jury, unless waived. Lust v Farmers’ Bank & Savings Co., 114 Oh St 312, 320, 151 NE 189; Raymond v T., St. L. & K. C. R. Co., 57 Oh St 271, 288, 48 NE 1093; Smith v Anderson, 20 Oh St 76, 81; 15 Ohio Jurisprudence 209, §46.

A jury was not waived, but as appears in the judgment entry the court instructed a verdict for the plaintiff, which was the equivalent of denying the defendants a jury trial. This constituted prejudicial and reversible error. Newnam’s Lessee v City of Cincinnati, 18 Ohio, 323, 333; 15 Ohio Jurisprudence, 211, §48.

It was .the duty of the trial court to pass upon the equitable defense and then submit the case to the jury with proper instructions upon all the issues in the case.

The judgment of the Court of Common Pleas will be reversed, and the cause remanded for a new trial.