concurring: The complaint alleges that the policy of insurance issued by the defendant was for $1,500 insurance on tobacco; that the tobacco was destroyed during the life of the policy, by fire; that the plaintiff had theretofore requested defendant’s agent to transfer the insurance from the tobacco to the machinery; that said agent had authority to make such transfer and had frequently made similar transfers. There is no averment that the transfer *495of the insurance to the machinery was in fact made, though the complaint does allege that “plaintiff is advised by counsel that the policy, ‘on account of such transfer/ covered said machinery.” This is evidently merely an allegation that the legal effect of such request to the agent, etc., was to transfer the policy to the machinery, and further the complaint asks judgment for the recovery of $1,500 upon the value of the machinery. The. answer denies any transfer of the insurance to the machinery, and on the trial there was no proof of such transfer and the policy itself being put in evidence showed that in fact no transfer had been made.
Thus there was neither allegation nor proof of a transfer of the insurance to the machinery; there was allegation that the insurance was upon the tobacco and proof by the policy itself that it had not been transferred, supporting the averment of the answer to the same effect. The indirect statement that by “such transfer” the policy covered the machinery is the assertion of a legal inference merely, and is not supported by any allegation of fact in the complaint. It is true that the complaint asks for judgment for $1,500 upon the machinery, but the demand for judgment is immaterial. The court will grant any relief which is “authorized by the facts alleged and proven,” whether such relief is demanded in the prayer for judgment or not, and even when an entirely different relief is prayed for. Clark’s Code, (3 Ed.), pp. 200, 201 and numerous cases there cited.
The distinguishing feature of the reformed procedure is that cases shall be tried upon their merits disregarding. technicalities and over-refinements. The Code, 260, provides that “pleadings shall be liberally construed with a view to substantial justice between the parties,” and section 269 pro-, vides, “No variance between the allegation in a pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits.” This section further provides that *496the adverse party must allege that he was misled, and must prove that fact “to the satisfaction of the court,” and wherein he was misled, and the only penalty and remedy prescribed is an amendment upon such terms as the court may deem just. There is no penalty allowed of dismissal of the action or loss of substantial rights by either party. The sole object is that the case shall be tried and decided upon its merits. Here the defendant did not allege that he was misled and the judge did not find that this was shown to his satisfaction. Had he done so, justice and the statute prescribe as the sole remedy an amendment upon such terms as the court might deem just. The court could not visit upon the plaintiff, as a penalty for inadvertence in pleading, or a mistaken allegation of fact (if made) a dismissal of the action. In fact it is clear that the defendant was not “misled” to his predju-dice “in maintaining his action upon the merits.” His own averment of no transfer was proven, and the plaintiff' having alleged and shown the insurance upon the tobacco and its loss, was entitled to recover its value not to exceed the amount of the policy. There was no need to aver the value of the tobacco lost. That was a matter to be determined, not to exceed the contract for indemnity, $1,500. If the defendant wished the amount more definitely stated, he could have asked for an order to require the plaintiff to make his pleading more definite upon that point. See numerous cases Clark’s Code (3rd Ed.), pp. 290-293, and pp. 275-278.
There was no need to amend the complaint for the insurance upon the tobacco and the loss of the tobacco were alleged and proven. There was no direct allegation of a transfer of the policy of insurance as a fact and no proof of it, but a denial of such transfer and proof that the insurance had not been transferred. There was no need to amend the prayer for judgment for its purport was immaterial. Averment of the total loss of the tobacco entitled plaintiff to show its value.
In granting judgment of nonsuit there was error.