#### Nick Stelpflug, Appellant, v. P. R Wolfe and Kate Wolfe, Defendants and Appellees; Wm. J Hartman and George H. Jackson, Interveners.

1 Pleadings: waiver of objection. Where a case is tried on the theory that the right to equitable relief was the sole issue, a technical objection that the pleadings were insufficient to authorize such relief, is waived.

*2*Reformation of instruments. Equity will reform a contract to make its legal effect correspond with the intention of the parties as disclosed by their negotiations, though the evidence fails to make a clear case of fraud, accident or mistake.

3 Evidence: examination by court. ' In the trial of an equity action, prejudice will not be presumed from a vigorous cross examination of one of the parties by the trial judge, where it did not appear that the party was thereby induced to testify to anything but the truth as he understood it.

*Appeal from, Pocahontas District Oourt.*— HoN. W. B. QuaetoN, Judge.

Wednesday, April 5, 1905.

This action was originally brought at law to replevin certain furniture and fixtures used by the defendants Wolfe and wife in conducting a hotel as tenants of the plaintiff. The interveners, Plartman and Jackson, claimed title to the property under a written contract with plaintiff, conveying to them the hotel premises in exchange for other property, and asked that the written contract be so reformed in equity as to cover the furniture and fixtures on the hotel premises. The case was transferred to the equity docket; and on a trial *193tbe court reformed tbe instrument so as to cover tbe furniture and fixtures. Plaintiff *appeals.*

Affirmed.

*Heald &*Ralston, for appellant.

*John A. Benniff*and *Wm. Hazlett,*for appellees.

McClaiN, J.

Counsel for appellant now argue tbat tbe pleadings did not justify tbe granting of equitable relief to tbe interveners as against plaintiff. But tbe case was tried throughout on tbe theory tbat tbe right of interveners to equitable relief was tbe sole question in tbe case, and it is too late to raise any technical objection to tbe sufficiency of tbe pleadings. *Enix v. Iowa Cent. R.*Co., 114 Iowa, 508; *Hough v.*Gearen, 110 Iowa, 240; *Lacy v. Kossuth*County, 106 Iowa, 16.

Tbe contract of plaintiff relied on by interveners, transferred to them *“*tbe hotel property and lot now owned by ” plaintiff “ at tbe agreed consideration of $2,500, subject to a mortgage of $600”; and tbe sole controversy in this case is whether, conceding that this description conveys tbe real property only, and not tbe furniture and fixtures used in conducting tbe hotel, it was tbe intention of tbe parties tbat tbe furniture and fixtures should pass to tbe interveners under tbe contract. We have examined tbe evidence, and have, reached tbe conclusion tbat it clearly and satisfactorily establishes tbe contention of interveners. Counsel for appellant urge tbat tbe evidence does not make out a case of fraud, accident, or mistake such as to entitle interveners to relief in equity. But in this State it is well settled tbat equity will grant relief for tbe purpose of making tbe legal effect of tbe instrument correspond to tbe express intention of the parties as disclosed in their negotiations. *Hausbrandt v.*Hofler, 117 Iowa, 103; *Conner v.*Baxter, 124 Iowa, 219; *Bottorff v.*Lewis, 121 Iowa, 27; *Hopwood v. McCausland,*120 Iowa, 218; *Brown v.*Ward, 119 Iowa, 604.

*194Complaint is made of the action of the trial judge in a rigorous and somewhat drastic cross-examination on his own account of the plaintiff as a witness. If the trial had been to a jury, tire method pursued by the judge would have been highly objectionable, as indicating to the jury great incredulity as to the truthfulness of the statements made by the witness, and therefore as indicating the views of the judge as to the weight of the evidence. But we are unable, under the record, to reach the conclusion that the judge induced the plaintiff to testify to anything beyond the truth as he actually understood it; and therefore we cannot see how any prejudice to the plaintiff -can be presumed to have resulted from the court’s action.

The decree of the trial court is therefore *affirmed.*