McIntosh

Defendant and appellant Robert Bowman (Bowman) appeals a judgment in favor of plaintiff and respondent John McIntosh (McIntosh), on the ground that he was improperly denied his right to a jury trial.

We affirm the judgment.

Facts

McIntosh, a fireman contemplating retirement after 18 years service, wanted to augment his prospective pension by a secure investment. He was advised by Bowman, his former commanding officer, to withdraw his savings, liquidate his securities, and borrow additional money from the Fireman’s Credit Union to enter into a limited partnership, which was to purchase a purportedly established peach orchard. However, at the time Bowman advised McIntosh to invest in the orchard, the limited partnership had been formed, had already taken title to the orchard and was in financial distress and the orchard was in foreclosure.

As a prior investor in the orchard, Bowman was aware of the true situation. Shortly after obtaining funds from McIntosh, the partnership became defunct. McIntosh’s entire investment was lost.

Procedural Background

In May 1977, McIntosh filed a complaint alleging fraud against Bowman and others.

In an October 14, 1977, at-issue…