recover the amount alleged to be due on a Farmers' F. Ins. Co. v. Saindon, 52 Kan. policy of hail insurance. Affirmed.

plaintiff is a farmer residing on section 17, 25 S. D. 183, 126 N. W. 262; Parno v. in township 157, range 51, in Walsh county, Iowa Merchants' Mut. Ins. Co. 114 Iowa, in this state. This township is named Ac132, 86 N. W. 211; Key v. Des Moines Ins. ton township. It is conceded that Collette Co. 77 Iowa, 174, 41 N. W. 614; Stone v. was the duly authorized and licensed agent Hawkeye Ins. Co. 68 Iowa, 737, 56 Am. Rep. of the defendant company, authorized not 870, 28 N. W. 47; Siltz v. Hawkeye Ins. only to write insurance for the defendant, Co. 71 Iowa, 710, 29 N. W. 605; Kansas but also authorized to appoint subagents.

On June 27, 1912, said Collette obtained township 157, range 51. I undertook to fill from the plaintiff an application for hail in the description of the township in the insurance with the defendant upon crops on application and have since looked it up and the lands owned and occupied by plaintiff discovered it was a mistake." in section 17, and in the adjoining section It is conceded that the plaintiff owned 8 in said township. The application was no lands or crops in township 158, range prepared by Collette, who asked questions 52; but the only lands and crops which he of the plaintiff and wrote down the an-owned were those located in Acton townswers in the application and secured ship, and there is no dispute but that these the signature of the plaintiff, French, thereto. The plaintiff did not read the application before signing the same. The first part of the application is as follows:

"If the facts entitling a party to a rem edy, legal or equitable, are averred and proved, he shall obtain that remedy, notwithstanding his omission to ask for it in his demand of judgment; and, if the facts were not averred, he shall not obtain the remedy, although he demanded it in the Pom. Code Remedies,

the single exception that another allega- | judgment, the court will rely upon the facts tion is added, stating the value of plain- alleged and proved as the basis of its remetiff's interest in the crops, and the prayer dial action." Pom. Code Remedies, *83. for judgment was amended by asking that the policy be reformed by substituting the proper description of township and range in lieu of the incorrect description. The amended answer admitted that Collette was a duly authorized agent of the defendant company, that the policy was issued and delivered, but denied any mutual mistake most formal manner." in the issuance of the policy, and further | *84. denied that the defendant issued any policy of insurance for injuries to the crops destroyed. The trial court made findings of fact and ordered judgment in favor of the plaintiff, that the policy be reformed by correcting the mistakes made therein with reference to the number of the township and range, and further awarded plaintiff judgment against the defendant for the sum of $771.25 and interest and costs. The appeal is taken from the judgment so entered.

The appellant relies for a reversal on three propositions: (1) That the court erred in allowing the amendment of the complaint; (2) that the insurance policy must be reformed by an action in equity before a judgment at law can be obtained; (3) that, where both equitable and legal relief is sought, the equity action must be first and separately tried.

or

"The prayer for relief forms no part of the statement of the cause of action, and it is unimportant unless there is ambiguity in such statement. A bad prayer for relief a prayer for improper relief will not vitiate a pleading which is otherwise sufficient. The facts alleged, and not the relief demanded, are of chief importance, and they determine the relief to be granted." 31 Cyc. 110, and cases cited.

Under the provisions of § 7482, Comp. Laws 1913, the court has the right, in a proper case, to grant an amendment of the pleadings even after judgment. The propriety of the granting of such amendments rests within the sound discretion of the trial court and will not be reviewed by this court, except in a case where such discretion has been abused.

California has certain statutory provisions, identical in language with §§ 7478 and 7482, Comp. Laws 1913, and in the case of Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957, the supreme court of California held that "to allow amendments after the trial has commenced is in the discretion of the trial court, and error cannot be predicated on the allowance of such an amendment, whereby issues were raised which were not raised by the original pleadings, unless the adverse party asked to have the case reopened for the purpose of trying the new issue."

Appellant's first contention, that the trial court erred in allowing an amendment of the complaint, is clearly without merit. It will be observed that, at the commencement of the trial, defendant's counsel obtained leave to amend the answer; that such leave was granted upon the condition that the plaintiff be permitted to amend the complaint. No objection was made by defendant's counsel to such arrangement, and the record indicates that the trial court believed that this arrangement was entirely satisfactory to defendant's counsel. The amendment, however, could in no manner prejudice the defendant, and we are satisfied that the trial court did not abuse its discretion in permitting the complaint to be so amended. The amended complaint sets forth substantially the same facts as the original complaint, and the only change of which defendant's counsel complains is the amendment of the prayer for judgment. It is not contended that any substantial change was made in the body of the complaint, and no showing or claim of surprise was made by the defendant. It is therefore self-evident that defendant was not prejudiced by the amendment, as the plaintiff was entitled to recover upon the facts alleged and proven, rather than the relief demanded in the prayer for judgment. "Disregarding the prayer or demand of facts and circumstances alleged in the

And in the case of Hancock v. Board of Education, 140 Cal. 554, 74 Pac. 47, in considering the same question, the California court said: "It is also contended that the court erred in allowing the plaintiff, after the evidence had been taken and the cause submitted, to file an amended complaint. This contention is based upon the theory that the amended complaint changed the cause of action. What has been said disposes of this proposition. The action still remains upon the contract made by the former board, and, as there has been no change in the actual existence of the corporation which made the contract and was responsible for it, there has been no such change in the cause of action as would constitute a departure. The additional

amended complaint do not involve any | made, and no objection in any manner in

change in the nature of the cause of action. It still remained an action upon the contract, and it was within the discretion of the court to allow the amendment."

terposed to the submission of all the issues to the court. In fact, the defendant expressly stipulated that a trial by jury be waived and all the issues tried to the court. It is therefore obvious that the defendant cannot assert at this time that it was prejudiced by a mode of procedure to which it acquiesced in the district court; nor can it be permitted to object for the first time on ap

of legal, cognizance, or vice versa; that there is a misjoinder of causes of action; or that certain issues should have been submitted to a jury. 2 Cyc. 683, 690, 701.

The decisions of the California court are also in harmony with the views expressed by Chief Justice Morgan in the case of Barker v. More Bros. 18 N. D. 82, 85, 118 N. W. 823, and are sustained by the great weight of authority. Firebaugh v. Burbank, | peal that a cause is of equitable, and not 121 Cal. 186, 53 Pac. 560; Hancock v. Board of Education, 140 Cal. 554, 74 Pac. 47; Hedstrom v. Union Trust Co. 7 Cal. App. 278, 94 Pac. 387; Thomas v. Brooklyn, 58 Iowa, 438, 10 N. W. 849; Tiffany v. Henderson, 57 Iowa, 490, 10 N. W. 885; Adams v. Castle, 64 Minn. 505, 67 N. W. 638; Kaufman v. Barbour, 103 Minn. 158, 114 N. W. 739; O'Brien v. Northwestern Consol. Mill. Co. 119 Minn. 4, 137 N. W. 399; Hibernia Sav. & L. Soc. v. Jones, 89 Cal. 507, 26 Pac. 1089; Coubrough v. Adams, 70 Cal. 374, 11 Pac. 634; Wabash & W. R. Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 N. E. 85; Metropolitan L. Ins. Co. v. Smith, 22 Ky. L. Rep. 868, 53 L.R.A. 817, 59 S. W. 24; Garver v. Garver, 145 Mo. App. 353, 130 S. W. 369; Rothschild v. Harris (City Ct. N. Y.) 125 N. Y. Supp. 41; Howland v. Caille, 153 Mich. 349, 116 N. W. 1079; Higgins v. People, 2 Colo. App. 567, 31 Pac. 951; Hansen v. Allen, 117 Wis. 61, 93 N. W. 805; Frey v. Owens, 27 Neb. 862, 44 N. W. 42; Briggs v. Rutherford, 94 Minn. 23, 101 N. W. 954.

Appellant's next contention is stated in its brief as follows: "It is the contention of the appellant and defendant that there were here two separate controversies, one equitable and the other legal; that, before any judgment could be entered or any amount found to be due, an action for a reformation of the contract must be brought and it be determined as a matter in equity that such reformation be had, so that a decree in such equity action would set out the real contract of the parties, and then upon that contract the plaintiff might sue for the amount claimed to be due."

We are unable to agree with appellant in his contentions for three reasons: First, the questions now sought to be raised were not raised in the court below; second, the policy could be reformed and recovery enforced thereon in the same action; third, a reformation of the policy was not essential to entitle the plaintiff to recover.

We are also satisfied that appellant is clearly in error when it contends that two actions are necessary where it is essential to reform an insurance contract: First, one in equity to reform the policy, and then an action at law for the amount due thereon as reformed; but we are entirely satisfied that the policy may be reformed and a recovery enforced thereon in the same action. "There was nothing in the objection that the court should have stopped with reforming the policy, and turned the plaintiffs over to a new action to recover their damages. The rule of courts of equity was, when they had acquired jurisdiction, and had the whole merits before them, to proceed and to complete justice between the parties." Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 267.

In this state the forms of civil actions have been abolished, and it is provided that the provisions of, and all proceedings under, the Code in this state, "are to be liberally construed with a view to effect its objects and to promote justice." Comp. Laws, § 7321.

"When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action or the same transaction, and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sustained to its full extent in the form thus adopted." Pom. Code Remedies, *78.

"In one civil action the plaintiff may not only unite and obtain both the remedy of reformation and the equitable remedy of specific performance, but also the remedy The objections now raised by appellant of reformation and the legal remedy of a were in no manner urged in the court be- pecuniary judgment for debt or damages for low. No demurrer was interposed to the the breach of the contract as corrected, or complaint, and no demand for a separate the legal remedy of a recovery of specific trial of legal and equitable issues was property." 2 Pom. Eq. Jur. 3d ed. § 862.

courts of law will apply the doctrines of waiver and estoppel, or allow proof of mistake, so as to enable the plaintiff to maintain his action for indemnity, and not drive him to a court of equity."

This question was before the supreme court of Kansas in American Cent. Ins. Co. v. McLanathan, 11 Kan. 533, and in that case the court says: "In such a case the contract is not void for uncertainty, nor is there any need of applying for a reformation of the contract, provided it appear, either from the face of the instrument or extrinsic facts, which is the true and which is the false description."

Was it necessary for plaintiff to seek relief in equity, and bring an equitable action for a reformation of the policy, or could he, by alleging all the facts in his complaint, maintain an action at law thereon in the first instance? It is conceded that Collette, and not the plaintiff, committed the blunder. Collette, in preparing the application, was the agent of the insurance company, and not of the applicant. In so doing, he was acting within the scope of his authority. Leisen v. St. Paul F. & M. Ins. Co. 20 N. D. 316, 30 L.R.A. (N.S.) 539, 127 N. W. 837; Kausel v. Minnesota Farmers' Mut. F. Ins. Asso. 31 Minn. 17, 47 Am. Rep. 776, 16 N. W. 430; Whitney v. These principles are sustained by the National Masonic Acci. Asso. 57 Minn. 472, following authorities: Phenix Ins. Co. v. 59 N. W. 943; Norman v. Kelso Farmers' Gebhart, 32 Neb. 144, 49 N. W. 333; AmerMut. F. Ins. Co. 114 Minn. 49, 130 N. W. ican Cent. Ins. Co. v. McLanathan, supra; 13. Collette's error, therefore, was the Eggleston v. Council Bluffs Ins. Co. 65 error of the defendant, and it will not be Iowa, 308, 21 N. W. 652; Germania L. Ins. permitted to say that the plaintiff was to Co. v. Lunkenheimer, 127 Ind. 536, 26 N. E. blame or negligent in trusting the accuracy 1082; Deitz v. Providence Washington Ins. of its agent in preparing the application. Co. 31 W. Va. 851, 13 Am. St. Rep. 909, The only reason for the questions pro- 8 S. E. 616; Kansas Farmers' F. Ins. Co. pounded to the plaintiff was to ascertain v. Saindon, 52 Kan. 486, 39 Am. St. Rep. the truth with reference to the crops to be 356, 35 Pac. 15; Smith v. Commonwealth insured. It is conceded that the plaintiff Ins. Co. 49 Wis. 322, 5 N. W. 804; State gave truthful answers to all questions Ins. Co. v. Schreck, 27 Neb. 527, 6 L.R.A. asked. The erroneous answer with refer- | 524, 20 Am. St. Rep. 681, 43 N. W. 340, 344; ence to the description of the premises was not the answer of the plaintiff, but of Collette. Plaintiff applied for insurance upon his crops in Acton township in Walsh county. French and Collette both say that the intention was to insure these crops, the crops growing on the very land where the application was prepared and signed. The plaintiff was in no manner to blame for the mistake in the application and policy. This was solely the fault of the defendant, as, of course, the defendant is bound by the acts of its agent in this case. The contract was to insure the very crops of the plaintiff in Acton township which were destroyed by hail. "The agreement in a policy is to insure certain property of a party-such as the house in which he and his family reside, a barn on his farm, or a warehouse for the storage of produce, or, as in this case, certain personal property. A misdescription of the land on which any of these is situated will not defeat a recovery in case of loss by fire, because the court looks at the real contract of the parties, which was to insure certain property of the policy holder. The fact that such property was on a particular section-as section 16 instead of 17-cannot, of itself, affect the risk, and would not render the policy void." Phenix Ins. Co. v. Gebhart, 32 Neb. 144, 146, 49 N. W. 333, 334.

In May, Ins. vol. 2, p. 1330, § 566, it is said: "In most of the states, however,

Lumbermen's Mut. Ins. Co. v. Bell, 166 Ill. 400, 57 Am. St. Rep. 140, 45 N. E. 130; Hobkirk v. Phoenix Ins. Co. 102 Wis. 13, 78 N. W. 160; Carey v. Home Ins. Co. 97 Iowa, 619, 66 N. W. 920; Etna Ins. Co. v. Brannon, 99 Tex. 391, 2 L.R.A. (N.S.) 548, 89 S. W. 1057, 13 Ann Cas. 1020; Maher v. Hibernia Ins. Co. 67 N. Y. 283; Phenix Ins. Co. v. Allen, 109 Ind. 273, 10 N. E. 85. See also Leisen v. St. Paul F. & M. Ins. Co. 20 N. D. 317, 30 L.R.A. (N.S.) 539, 127 N. W. 837, and Gorder v. Hilliboe, 17 N. D. 281, 283, 115 N. W. 843, and Beach, Ins. § 1319. A number of the authorities cited above are based upon the theory that the insurance company is estopped to deny the error of its agent, and that for that reason the plaintiff may sue upon the contract as issued, and, without any allegations in the complaint relative to the mistake, introduce testimony showing the knowledge of, and mistake made by, the agent of the insurance company in misdescribing the property.

As we view the matter, however, the principle of estoppel should not be applied in a case where there is a misdescription of the property intended to be covered by the policy, but it is rather a case coming within the rule that parol evidence may be admitted for the purpose of showing that, by reason of a mistake, a written instrument does not truly express the intention of the parties. While there are cases holding that such evidence is only admissible in