Argument for Appellant. 4. Where plaintiff alleges that an instrument purporting to be a deed was in fact a mortgage, and seeks to recover from the grantee the difference between his indebtedness and the amount received by the grantee on sale of the property to a third party, and joins such third party with the grantee as a defendant, in order to affect such third party with notice of the grantee's real interest in the property under such deed, it must be shown that such third party purchased with actual or constructive notice of the fact that the first deed was in fact a mortgage, given for the purpose of securing an indebtedness, and unless this is clearly shown, either by parol evidence or by attendant circumstances, the validity of the deed given by the grantee to such third party cannot be attacked. 5. Held, that the allegations and prayer of plaintiff's complaint in this case show him to be entitled to a trial by jury, under sec. 7, art. 1, of the constitution, and secs. 4368 and 4369, Rev. Codes, which right cannot be denied him in the absence of a waiver. 6. Held, that the acts and conduct of plaintiff in this case, as shown by the record, do not constitute a waiver of a jury trial. [As to parol evidence supplementing deed by proof a collateral oral agreement, see note in Ann. Cas. 1914A, 455.] APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge. Action in assumpsit for money had and received. From a judgment for defendant, plaintiff appeals. Reversed and remanded. S. L. Tipton and J. B. Eldridge, for Appellant. The guaranty that "the right to trial by jury should remain inviolate" has no reference to equitable cases. (Christensen v. Hollingsworth, 6 Ida. 87, 96 Am. St. 256, 53 Pac. 211.) The right to a jury trial may be waived by any conduct or acquiescence inconsistent with the intention or expectation to insist upon it. (24 Cyc. 154; MacKellar v. Rogers, 109 N. Y. 468, 17 N. E. 350; Boyd v. Boyd, 12 Misc. Rep. 119, 33 N. Y. Supp. 74 (affirmed, 146 N. Y. 403, 42 N. E. 542); Keystone D. Co. v. Worth, 117 N. C. 515, 23 S. E. 427; People v. Firth, 88 Misc. Rep. 217, 151 N. Y. Supp. 705.) Argument for Respondents. The noticing the case for trial after the jury has been discharged will have the effect of waiving trial by jury. (Cole v. Terrell, 71 Tex. 549, 9 S. W. 668; Blankenship v. Parsons, 113 Ala. 275, 21 So. 71.) The statutory method of waiving a jury trial is not exclusive. (Lindstrom v. Hope Lumber Co., 12 Ida. 715 (721), 88 Pac. 92; Schumacher v. Crane-Churchill Co., 66 Neb. 440, 92 N. W. 609; Keystone Driller Co. v. Worth, 117 N. C. 515, 23 S. E. 427.) B. S. Crow and Wyman & Wyman, for Respondents. The law is well settled that assumpsit is an action at law. (Kreutz v. Livingston, 15 Cal. 344, 345.) A jury trial was had in the following cases for money had and received: Minor v. Baldridge, 123 Cal. 187, 55 Pac. 783; Lutz v. Rothschild, 4 Cal. Unrep. 888, 38 Pac. 360; Donovan v. Purtell, 216 Ill. 629, 75 N. E. 334, 1 L. R. A., N. S., 176; Peterson v. Foss, 12 Or. 81, 6 Pac. 397. "It is no objection to the maintenance of this action that equitable principles are to some extent to be applied and that the money sought to be recovered is impressed with a trust in the hands of the holder." (Merino v. Munoz, 99 App. Div. 201, 90 N. Y. Supp. 985.) Where the mortgagee or the party having a deed for the premises as security for the debt sells the same, the action for money had and received is the remedy. (Lander v. Castro, 43 Cal. 497; Scranton v. Begol, 60 Cal. 642.) This being an action at law, the plaintiff was entitled to a trial by a jury. "Under the provisions of the constitution of Idaho the right to trial by jury is never to be denied even though an accounting is involved." (Russell v. Alt, 12 Ida. 789, 88 Pac. 416, 13 L. R. A., N. S., 146; Lindstrom v. Hope Lumber Co., 12 Ida. 714, 88 Pac. 92; Robertson v. Moore, 10 Ida. 115, 77 Pac. 218; Dittemore v. Cable Milling Co., 16 Ida. 298, 133 Am. St. 98, 101 Pac. 593; Davidson Grocery Co. v. Johnston, 24 Ida. 336, Ann. Cas. 1915C, 1129, 133 Pac. 929.) Opinion of the Court-Budge, C. J. BUDGE, C. J.-In 1905 appellant procured from respondent $6,500, for which he executed and delivered a warranty deed, conveying certain real estate, and a bill of sale of certain personal property. The money thus procured was to be repaid according to stipulated terms. The appellant, however, failed to make the payments as agreed, and in 1907 another arrangement was made, whereby appellant executed and delivered to respondent, Looney, a quitclaim deed to said real estate, and the latter surrendered all claim or ownership in and to the personal property, after satisfying a certain chattel mortgage of $400 then due on said personal property. Thereafter respondent, Oakes, having purchased a one-half interest in the real estate described in the deed from the appellant to Looney, the whole was sold and conveyed to E. H. Dewey. Appellant alleges that the real estate thus conveyed was rightfully his and had been conveyed to Looney only as security for the money borrowed, and that he should be permitted to recover the sales price received by respondents, less the amount of the appellant's indebtedness to Looney. While admitting that these deeds are absolute in form, the appellant asserts that it was the intention of the parties at the time of the transactions that they should serve as mortgages only. Although counsel presented the case upon the theory that the deeds given by appellant to respondent, Looney, were in fact mortgages, it appears that the complaint seeks to set out facts from which, if true, a constructive trust would arise in favor of the plaintiff. Under this theory, however, the result would be the same. But since the respond ents have conveyed said property to E. H. Dewey, conceded for the purposes of this action to be an innocent purchaser, appellant is not seeking to set aside the deed from the respondents to said E. H. Dewey, but seeks to have the deed declared a mortgage as between himself and Looney in order to hold the respondents liable for the difference between the amount alleged to have been received by the sale to Dewey and the appellant's indebtedness to Looney. Upon this theory he instituted an action in the district court in and for Ada county, which was in form a common-law action of Opinion of the Court-Budge, C. J. assumpsit for money had and received, to which a demurrer was interposed and sustained. Thereafter an amended complaint was filed, to which respondents filed an answer. The cause coming on for trial, appellant requested a jury trial, but the trial court, being of the opinion that the issues involved were equitable and that the action was one in equity and not at law, denied the request of appellant, who thereupon refused to proceed further with the trial of the cause, and the cause was thereupon dismissed. This is an appeal from the judgment of dismissal, the appellant specifying as error the action of the trial court in denying his request for a jury trial, and insisting that this is an action at law, since the only relief that he can obtain under the pleadings is a money judgment. While, upon the other hand, the respondent contends that the latter deed, conveying the real estate, is an absolute conveyance, intended as such, and was given for the express purpose of extinguishing whatever title appellant may have had in and to the real property conveyed. The important question raised in this case, therefore, is: Is this an action at law or a suit in equity? If the former, clearly the appellant was entitled to a jury trial and the judgment of the trial court should be reversed. It would be difficult and perhaps impossible in all cases to determine from the pleadings alone what should be deemed a suit in equity as distinguished from an action at law. In this case one of the important facts to be decided is whether the second deed, given by appellant to Looney, was a deed absolute, and vested the title to the real estate therein described in fee simple in Looney, as it purported to do upon its face, or whether it was in truth and in fact a mortgage, intended as such and given for the purpose of securing an indebtedness, the equitable title to remain in the appellant. The latter is not seeking in this action to have the deed declared a mortgage for the purpose of redemption; nevertheless, in order for the appellant to recover under any circumstances, it will be necessary for the court or jury to Opinion of the Court-Budge, C. J. determine whether the deed given by the appellant to Looney is a mortgage or an absolute conveyance. Therefore, in determining the nature of the present action, this court must be influenced by the averments of plaintiff's petition or complaint and the body and substance of the relief which he is seeking. What relief is he seeking is it primarily the cancelation of the deed? We think not. He is claiming an amount of money, the difference between the sales price received by the respondents from Dewey and the plaintiff's indebtedness to respondent, Looney, under the transactions herein involved. Admitting that, in order to entitle him to recover this surplus, he must show the conveyance to have been a mortgage instead of a deed; this proposition would seem to be only incidental to the real issue presented by the case, and, therefore, not controlling in determining whether it is a suit in equity or an action at law. The fact that there is an equitable question involved in a case is not decisive of its nature. There is a rule of law dating almost as far back as the statute of frauds, which allows the purport of a written instrument to be varied by parol evidence, when such instrument is vague or indefinite, or when there is a hidden meaning not expressed in its terms, but which was equally intended to be a part of such transaction and binding upon the parties. The reason for this rule is very obvious. The appellant in this action seeks to establish what he contends to be the agreement between himself and Looney at the time the latter deed was given, which was not to bind them in the manner expressed in the written instrument. In order to do this it will be necessary for the appellant to show that the deed, though absolute on its face, was given to secure the payment of a fixed sum of money within a specified time and was intended as a mortgage. As affecting Oakes it must be shown that, at the time he purchased the one-half interest from Looney, he did so either with knowledge of the fact, if such be the fact, that the conveyance, from appellant to Looney, although a deed absolute in form, was intended as a mortgage, or that he was in possession of knowledge, or informed of such facts, |