¶3 For all practical purposes, most, if not all, the claims and counter-claims made by McGinn and the Butchers are equitable in nature. Despite the equitable nature of the proceedings, the district court and counsel for the parties set the matter for a jury trial. There is no suggestion from the record that counsel or the trial court ever recognized the jury's verdict in such a situation would be advisory only.¹

¶8 In an equitable action, trial by jury is not a matter of right.² The presence of joined legal and equitable issues does not mandate a trial by jury. If the equitable issues are paramount or the legal issues incidental to or dependent upon the equitable issues, the issues are treated as equitable for trial purposes.³

¶9 The predominant issues in dispute in the immediate cause were matters of equitable cognizance and whatever "legal issues" are present in this case arise incidentally to the equitable claims. While the parties to this controversy were not entitled to a jury trial,⁴ the district court could have impaneled a jury to advise it on questions of fact.⁵

¶10 The verdict of such a jury is advisory only and the trial court is free to reject it or accept the verdict as its own.⁶ However, a jury's advisory verdict in an equitable action does not relieve the trial court of its independent duty to make its own determination on issues of fact and law.⁷

¶11 The record in the instant case is not only void of any explicit performance of this duty, it fails to give an indication of even a glimmering awareness of it. Instead, this Court is forced to search the record to determine if we may engage in the presumption the trial court would have adopted the jury's findings.⁸

¶12 We find we can indulge such presumption and we reiterate our holding in A.A. Murphy, Inc. v. Banfield,⁹ where we said failure of the trial court to treat the verdict as advisory is no ground for reversal unless an examination of the entire record discloses that a miscarriage of justice has probably resulted or there was a violation of statutory or constitutional rights.

¶13 There are two prior decisions of this Court which are of assistance in this examination. In the first, Flowers v. Stanley,¹⁰ we looked to the journal entry of judgment to determine if the trial court had made independent findings and conclusions of law and fact in a case tried before an advisory jury. We found that the journal entry "plainly [represented] . . . that the trial court reviewed the evidence and arrived at its own independent finding and conclusions. . . ."¹¹ In contrast, the journal entries of judgment in this controversy reflect that they were made "pursuant" to the jury verdict. There is no indication that the trial court made its own review and judgment on any issue in the case.

¶14 In the second, First National Bank v. Russell,¹² we found that the trial court adopted the advisory verdict when it refused to grant a judgment notwithstanding the verdict or a motion for a new trial. We held that the verdict and findings of the jury were adopted by the trial court as "effectively as though it had entered an order to that effect." In the instant case both such motions were made and refused by the trial court and though there is no indication from the record that the trial court or counsel for the parties recognized the adoptive impact of the court's actions, our decision in First National Bank v. Russell,¹³ guides this Court to find that the jury's verdict was adopted by the trial court.

¶15 McGinn and the Butchers assign numerous errors in the instructions to the jury. Errors in jury instructions, which might form the basis for reversal in a trial at law, ordinarily furnish no ground for reversal on appeal where the jury serves only in an advisory capacity.¹⁴ Applying this rule in the case before us, we find it unnecessary to address these alleged errors.

¶16 The Butchers and McGinn also make numerous assignments of errors in evidentiary rulings by the trial court. The advisory nature of the jury invokes a different standard of review for these assertions, and the final responsibility for determination of fact as well as law in this case rested in the trial court. Despite the existence of an advisory jury, the matter was tried to the court. The admission of evidence was largely discretionary and in the absence of a showing of abuse or substantial prejudice, the rulings, will not be disturbed.¹⁵

¶18 McGinn argues that since Larry Butcher was his agent, he could not purchase for himself the shoe store under lease to McGinn, and this purchase is a breach of fiduciary duty to McGinn. This is a correct statement of Oklahoma law that an agent will not be permitted to secure for himself that which is his duty to obtain for his principal. The Butchers would have us restrict this duty to actions relating to the subject matter of the principal-agent relationship, but such a narrow application of the duty flies in the face of [706 P.2d 882] justice. This Court in Wilcox v. Reynolds,¹⁶ stated:

¶19 In Fulton v. Baxter,¹⁷ there was evidence to show that the defendant, who was engaged in the selling of insurance, purposely brought about the termination of lease belonging to his partnership, and renewed it in his own name. We found this to be a breach of his fiduciary duty as an agent of his partners and an appropriation of the lease to the agent's own benefit. We held that, since the renewal was taken by less than all the partners, the lease inured to the benefit of the firm.

¶21 In actions for an accounting, this Court has held that it will not reverse a judgment rendered by the trial court unless such a judgment is clearly against the weight of the evidence.¹⁸

¶22 Because McGinn had possession and control of all business records of the four shoe stores, and because he failed to produce sufficient evidence concerning these records at trial, in order for the court to give effect to the judgments in favor of the Butchers, it was necessary for there to be an accounting. The relationship between the parties here is similar to that in Armstrong v. Gill,¹⁹ wherein we held an accounting may be ordered whenever one is necessary to determine the respective rights of the parties to a business relationship, regardless of whether that relationship is determined to be one of partnership, joint venture or employer and employee. Requiring McGinn to pay a pro-rata share of the costs of accounting is an extension of the trial court's equitable powers. These powers were not abused.

¶24 It is a settled rule in Oklahoma that, ordinarily, a reference to costs in a statute does not include attorney's fees.²⁰ Therefore, there is no authority for McGinn's assertion that he is entitled to an award of fees under this statute.

¶25 McGinn also seeks an award of fees under the doctrine of City National Bank and Trust Co. v. Owens,²¹ which holds a party may be awarded attorney's fees not authorized by statute or contract when overriding considerations, such as oppressive behavior on the part of an opposing party, indicate a need for such an award.

¹ Star v. Star, 94 Okl. 225, 221 P. 721 (1924).

² Waggoner v. Johnston, 408 P.2d 761 (Okl. 1965); In re Bank of Earlsboro, 391 P.2d 887 (Okl. 1964); Dowdy v. Clausewitz, 361 P.2d 288 (Okl. 1961).

³ Russell v. Freeman, 202 Okl. 421, 214 P.2d 443 (1949); Ledford v. Wheeler, 620 P.2d 903 (Okl. Ct.App. 1980).

⁴ Nitsche v. State Security Bank, 69 Okl. 37, 170 P. 234 (1918).

⁵ Ray v. Masters, 429 P.2d 991 (Okl. 1967); Gorman v. Carlock, 72 Okl. 104, 179 P. 38 (1919).

⁶ Commercial Communications, Inc. v. State ex rel. Okl. Bd. of Public Affairs, 613 P.2d 473 (Okl. 1980); Terrell v. Wheeler-Motter Merchantile Co., 147 Okl. 77, 294 P. 644 (1931).

⁷ Ray v. Masters, 429 P.2d 991 (Okl. 1967); Wat-tah-noh-zhe v. Moore, 36 Okl. 631, 129 P. 877 (1913); Tobin v. O'Brieter, 16 Okl. 500, 85 P. 1121 (1906).

⁸ Barry v. Phillips, 329 P.2d 1042 (Okl. 1958).

⁹ 363 P.2d 942 at 949 (Okl. 1961).

¹⁰ 316 P.2d 840 (Okl. 1957).

¹¹ Id. at 846.

¹² 128 Okl. 222, 262 P. 205 (1928).

¹³ Id. at 205.

¹⁴ Galer v. Berrian, 43 Okl. 303, 140 P. 155 (1914).

¹⁵ Kendall v. Sharp, 426 P.2d 707 (Okl. 1967); Rivers v. Parker, 382 P.2d 16 (Okl. 1963).

¹⁶ 169 Okl. 153, 36 P.2d 488 (1934).

¹⁷ 596 P.2d 540 (Okl. 1979).

¹⁸ Kethley v. Finn, 465 P.2d 752 (Okl. 1970).

¹⁹ 392 P.2d 737 (Okl. 1964).

²⁰ Sisk v. Sanditen Investments, Ltd., 662 P.2d 317 (Okl.App. 1983).

²¹ 565 P.2d 4 (Okl. 1977).