Dissenting opinions are generally a waste of time by the dissenting judge and a waste of space in the reports, for they cannot immediately affect the law as declared by the majority. But where the principle involved is one of importance and the rule laid down by the majority appears to be both unsound and contrary to that previously followed by the court, there is always a possibility, faint though it may seem at the time, that in a later case there may be a return to correct general principles, and that a dissenting opinion may add, in some small degree, to that most desirable result.
The tendency of the human mind to rationalize, in order to formulate a rule, scientific or legal, which will accomplish a desired result, is so great that in judicial circles it has even grown into a proverb. "Hard cases make bad law" has been reiterated again and again, until one would think that the lesson had been learned, but with every new case that presents an appeal to the emotions, the same conflict between judgment and desire reappears. That the ideal of every system of law is the attainment of perfect justice in every concrete case which may arise is a truism. The only question for us is as to how we may the most closely approach that end, for perfect justice is not to be found in the present life. We can only hope we will attain it in the hereafter. But what is justice? Justinian says it is "the set and constant purpose which gives to every man his due." If all men had the unselfishness of St. Francis and the omniscience and omnipotence of the Deity, the *Page 268 task of giving to each that which was his due would be easy, and law and a method of enforcing that law would be unnecessary. But no man has ever possessed those qualities and few have even approximated them to a very minor degree, and it is because of these faults and weaknesses in human nature that the necessity for law and for legal procedure has arisen. At first law was merely the judgment and will of the wisest and strongest man of the tribe, expressed as a doom in a particular case after it had arisen, but ages of experience have shown clearly two fatal weaknesses in this system of endeavoring to do justice. No matter how wise or well-intentioned the judge might be, his personal prejudices and emotional reactions were bound to influence his reason. But even more, the uncertainty of what the judgment would be (for no one could anticipate the peculiar reactions of the individual judge who might hear his case), left men with no standard by which to guide their future actions, so that they might avoid litigation.
For these reasons, the whole course of the development of legal procedure has been a struggle to get away from the practice of leaving decisions to the emotional reactions and idiosyncrasies of the particular judge as applied to the case after it had arisen, and to establish in advance general rules and standards which the judge would be obliged to apply to any case which was brought before him. It is impossible, however, for the human mind to anticipate every situation which may arise in the future, and it was early learned general rules which will do justice inevery specific case cannot be formulated in advance. The pendulum swung back and forth, from the Draconian Code from which the judge could not depart, to a reliance upon his unfettered and individual *Page 269 discretion. Many instances of injustice were bound to arise under either system of procedure, but one consideration eventually, and I believe permanently, tipped the scale. Men can adjust theirdaily conduct in a reasonably satisfactory manner to any systemof law so long as it is definite and certain, while uncertaintyparalyzes all action.
The English speaking peoples realized this early, and their development, in theory at least, has been towards "a government of laws and not of men." But even with them, the struggle has not always been easy. When cases arose in which an application of the accepted rules of law obviously worked an injustice, the desire to do concrete justice, even in violation of abstract law, was at times irresistible to the less far-seeing members of the judiciary, for they did not stop to consider that if they yielded to the insidious temptation, the ultimate result was bound to be a greater injustice for years, if not generations, to come. But even when they violated the spirit of the principle of "laws, not men," they tried to follow its letter, and instead of frankly admitting that, in their desire to do justice in a particular case, they had departed from the accepted rule, they almost invariably rationalized in an endeavor to show that the decision in reality did not violate the general law. This was usually done by so-called exceptions to the general rule, carefully formulated to fit the facts of the particular case, or by glossing over or ignoring of the facts which brought the case within the rule. Such an effort, with the result predetermined, was bound to be successful, but at what a cost! In order to do justice to A, a precedent was set which was unjust when later applied to B, C, D and E. And then the same process continued until all certainty as to the law had vanished, and no man could safely gauge *Page 270 his future conduct, or know what were his rights under given circumstances. It is plain that the formulation of an exception to a general rule of law for the purpose of doing justice in one particular case, without first carefully considering the results which its adoption would have on myriads of other cases to which, in the future, it must be applied, or a straining or ignoring of the facts of a particular case, is, in the long run, invariably productive of far more harm than good. These general principles would seem to be so obvious that it is a mere platitude to repeat them, and yet they are so often disregarded or, as I believe they have been in the present case, overlooked that I feel they cannot be reiterated too often.
In the early history of the English law, the pleadings by which the parties brought their case to an issue of fact or law which would determine the judgment, were extremely formal, and after a pleading had once been filed, amendments thereto were only allowed under the rarest circumstances. This rule, like nearly all other rules of the common law, was, at the time and under the circumstances existing when it was adopted, on the whole better fitted to accomplish justice than a contrary one would have been. The reasons therefor need not be stated, for it would require too extended a discussion of society in the middle ages and the early Constitution and jurisdiction of the courts. As circumstances changed, however, it was realized that the old rule was no longer so necessary and that it was beginning to produce more harm than good. For this reason, the courts became more liberal in the allowance of amendments, and this change has continued until, at the present time, we may safely say that an amendment to a pleading may be made at almost any time, so long *Page 271 as such amendment does not prejudice the substantial rights ofthe other party. On the other hand, if the allowance of an amendment would work an injustice to the other party, the most liberal Codes and decisions will not, at least openly, advocate or permit it to be made. But, in order to prevent uncertainty and individual prejudice from creeping into the law, the question of what amendments will work an injustice must be measured by the application of general principles determined and formulated in advance of a particular case, and after a careful survey and comparison of all the possible effects of those principles, applied to innumerable cases and over a long period of time, and not by the conclusion of an individual judge that the facts of the particular case, as he believes the evidence shows them to exist, show that an injustice would be done by a refusal to allow the amendment. To this general principle, thus stated, I am satisfied the majority of the court will accede. The question is: What test should be used to determine when an amendment violates the rule?
This involves the consideration of that rule of law known as the statute of limitations. If A really has a right of action against B, there is no reason, as a matter of abstract justice, why he should ever be cut off from bringing it merely because a certain time has elapsed since it accrued. And yet experience has showed in every country which has ever developed a judicial system that if a claimant were permitted to attempt to enforce his asserted right in the court without any limitation on the time in which he could commence his action, many and great injustices would be perpetrated.
The reason for and the result sought to be reached by the statute of limitations have been discussed repeatedly, but practically all of the authorities say *Page 272 the same thing in regard thereto, although their language differs greatly. The matter is summed up succinctly in the case ofRiddlesbarger v. Hartford Fire Ins. Co., 7 Wall. (74 U.S.) 386, 390, 19 L. Ed. 257, as follows:
"They are founded upon the general experience of mankind that claims, which are valid, are not usually allowed to remain neglected. The lapse of years without any attempt to enforce a demand creates, therefore, a presumption against its original validity, or that it has ceased to subsist. This presumption is made by these statutes a positive bar; and they thus become statutes of repose, protecting parties from the prosecution of stale claims, when, by loss of evidence from death of some witnesses, and the imperfect recollection of others, or the destruction of documents, it might be impossible to establish the truth. The policy of these statutes is to encourage promptitude in the prosecution of remedies."
Notwithstanding this wise and salutary purpose, many of the courts, in their desire to do justice in an individual case, forget the evils which the statutes are intended to avert, and attempt to limit or minimize their application. The danger of this shortsighted conduct is shown by Mr. Justice STORY, in the case of Bell v. Morrison, 1 Pet. 351, 360, 7 L. Ed. 174, as follows:
"It has often been matter of regret, in modern times, that, in the construction of the statute of limitations, the decisions had not proceeded upon principles better adapted to carry into effect the real objects of the statute; that, instead of being viewed in an unfavorable light, as an unjust and discreditable defence, it had received such support, as would have made it, what it was intended to be, emphatically, a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt, from lapse of time, but to afford security against stale demands, after the true *Page 273 state of the transaction may have been forgotten, or be incapable of explanation, by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts, and to suppress those prejudices which may rise up at a distance of time, and baffle every honest effort to counteract or overcome them. Parol evidence may be offered of confessions (a species of evidence which, it has been often observed, it is hard to disprove, and easy to fabricate), applicable to such remote times, as may leave no means to trace the nature, extent, or origin of the claim, and thus open the way to the most oppressive charges."
And one of the chief methods by which the statute is evaded is through the reckless and unwarranted use of the otherwise beneficent rule which now permits the amendment of pleadings. It is, of course, recognized by all the courts that an action filed after the statute of limitations has run cannot be maintained. When the right of amendment began to be used freely, it frequently appeared that the proposed amendment did apparently change the cause of action. What were the courts to do with these two conflicting rules? The general principle to be applied appeared fairly clear. If the amendment really had the effect of setting up a different cause of action from that contained in the original complaint, the statute of limitations was applied. If, however, it merely explained or amplified the old cause of action, the statute was held inapplicable, through the use of the doctrine of relation. But how should one determine whether a new cause of action was stated by the amendment, or whether it was only an amplification of the original one. Where the amendment was more or less formal, involving the correction of some obvious and minor irregularity or omission in the complaint, no great difficulty was experienced. Two types of amendment, however, have caused a great *Page 274 deal of controversy. The first class is found in cases where the original complaint did not, as a matter of procedural law, set up a complete cause of action, but did disclose one which, if properly pleaded, would be good. The second class appears where the complaint originally set up a perfect and complete cause of action, but where the amendment interjected new issues in the case, legal or factual. So far as the first type is concerned, in early days it was generally held that the action was not commenced until the complaint stated a good cause of action, and if the amendment was necessary to show a complete cause of action and was filed after the period of limitations expired, the statute applied. Such was the holding of this court in the case of Keppler v. Becker, 9 Ariz. 234, 80 P. 334. We, however, concluded at a later date that this rule was too harsh, and applied the principle of relation, holding that we would consider that the amendment related back to the filing of the original complaint, and that the bar of the statute did not apply if the original complaint had been filed in time. Hagenauer v.Detroit Copper M. Co., 14 Ariz. 74, 124 P. 803, Ann. Cas. 1914C 1016; Arizona Eastern R. Co. v. Old Dominion Copper etc.Co., 14 Ariz. 209, 127 P. 713; Gambrell v. McKean,28 Ariz. 427, 237 P. 196. But in each of these later cases we explained, or implied more or less elaborately, that the doctrine of relation only applied when the original complaintforeshadowed the precise cause of action made complete by theamendment and still adhered to the rule that if the amendment did, in truth and in law, state a different cause of action, the statute applied thereto as of the date of its filing.
In none of these cases, however, did we either expressly or impliedly state what was the standard by which we should determine whether when the *Page 275 original complaint on its face stated a complete cause of action, the amendment offered set up another one. This question was definitely settled for the first time in this state in the case of Kunselman v. Southern Pac. R. Co., 33 Ariz. 250,263 P. 939, 941. We reviewed all of the Arizona cases above cited and held specifically that they only applied when "an amendment to the complaint is but a perfected statement of the cause of action originally attempted to be pleaded." We then discussed the test to be used in determining whether a new cause of action was stated. It was urged that in the case cited the same debt lay at the basis of both the original and amended complaint, and that since the difference between them was merely in the method of statement, there was no new cause of action set up. We pointed out that this contention was fallacious and held as follows: "The test generally laid down for a departure is whether proof ofadditional facts will be required," and this test, approved by the leading text-writers and the vast majority of cases, has not yet been repudiated by this court. Nor do I understand the majority opinion to claim that it is not the correct test and that we should not apply it to all cases which come before us. The contention seems rather to be (a) that the evidence adduced at the trial shows the contract between the parties really contained the condition which the amendment attempted to add to the contract first pleaded; (b) that though such condition changed the legal effect of the contract pleaded, and of the ground on which recovery was sought, since it referred to the same stock the cause of action could not have been changed; (c) the evidence required to support the amendment was "in large part" the same as required to support the original complaint; and (d) at any rate, since defendant always knew the *Page 276 condition contained in the amendment was really in the contract, it was not injured by being compelled to meet that issue.
Let us consider these contentions in their order. If courts are permitted to allow their belief as to the truth or falsity of plaintiff's latest theory of his case to affect their conclusion as to whether an amendment to a complaint which removes, by relation, the bar of the statute of limitations may be made, that statute, as applied to any action upon an alleged contract, is absolutely destroyed, for if a litigant may, at a trial and after the statute has run, set up a contract different in legaleffect from that which he has first pleaded, merely because the trial judge believes that the alleged new contract was actually made, the test is no longer "what time has elapsed since the making of the alleged contract," but "does the trier of fact believe it was made as alleged." Nor is the second contention founded on sound principle. One might as well say that an action for breach of a contract for the lease of a house was identical with one for specific performance of a contract for the sale of a house, because they both refer to the same piece of property. The third contention is what the old common-law pleaders used to call a negative pregnant. The statement that the evidence required under the amendment was "in large part" the same as that under the original one is, in effect, an admission that there was a difference, and, as I shall point out later, that difference was a vital one. The fourth and last contention, that the defendant knew the true terms of the contract, and therefore would not be injured by its being pleaded, contains the same fatal error as the first, to wit, the court assumes in advance that the original contract in truth contained the clause last pleaded by the plaintiff. The contract set up in *Page 277 the original complaint created certain definite legal rights and obligations, and no others, and the complaint alleges that a certain obligation of defendant set forth in this specific contract, and no other, was breached. What was this duty and what was the alleged breach? The duty was the promise of the defendant that it would not sell its stock in the eastern part of the United States, and the breach alleged was that it had sold stock in the prohibited territory. What did plaintiff need to prove in order to sustain the allegations of his complaint? He must prove that the contract did contain the provisions referred to, and that the stock was sold in the eastern part of the United States together, of course, with his damages. When these three things were established, he was prima facie entitled to a verdict. Suppose, then, under the original complaint, he had offered to prove that the contract also contained the provision that the stock should not be sold in the west for less than 75 cents per share, and that a sale had been made there at a lower figure. The court would unquestionably and properly have sustained an objection to such evidence as incompetent and immaterial, and as bearing on none of the issues of the case.
In the complaint, as modified by the trial amendment, plaintiff set up a contract which contained certain legal rights and obligations not found in the contract which he had originallypleaded, and he sought damages for a violation of one of those newly stated obligations. Would the evidence which was sufficient to sustain a verdict for breach of the obligation relied on under the first complaint have sustained a verdict for a breach of the new obligation? Of course not! What was it necessary to prove under the amended complaint? He must show the very *Page 278 things which he would not have been permitted to offer in evidence on the original complaint, to wit, the new clause in the contract and the breach of that particular clause. It thus appears beyond the possibility of contradiction that the things which he must prove, in order to support his amendment, were things which he would not have been permitted, let alone required, to prove under the original complaint. And yet it is claimed new evidence is not required to support the amendment! If the majority opinion be correct, all that is necessary for a plaintiff to do whenever he finds himself unable to prove the cause of action set forth in a contract as pleaded, in order to base his action upon a condition of a contract and a breach thereof, which is entirely different in its legal effect and the proof necessary to sustain it from the contract and breach set forth in his original complaint, is to claim that the new clause is an additional and overlooked part of the contract as first pleaded, made at the same time and place and in regard to the same subject-matter. If this be true, the plaintiff herein might, if it appeared at the next trial of the case that he was unable to prove an agreement not to sell at less than 75 cents per share, or a sale below that amount, again amend by alleging that "as a part of the original agreement" defendant promised plaintiff that in case he could not make any sale of the stock it would pay him $10,000 for his lost time, and recover on that theory. If the trial court refused to allow that amendment, we would be bound to reverse the judgment, and at the third trial he might, with equal propriety, failing to prove this alleged provision of the contract, set up that he had just remembered it also promised to give him for his services, as a premium, 50,000 shares of the stock, and ask that such amendment be allowed because, *Page 279 forsooth, it was all part of the same transaction, made at the same time and relating to the same subject-matter. Theoretically, he might at each new trial add to his contract such additional terms as he wished, ad nauseam, provided only that he claimed they were made at the same time and place and regarding the same stock, and that the trial judge, from the evidence then offered, believed that the contract had actually been so made.
The majority opinion cites many cases as sustaining their conclusion. While general language may be found in some of these cases which will do so, in none of them, with the possible exception of Thouvenin v. Lea, 26 Tex. 612, do the facts show an attempt to add a new condition to a valid contract already pleaded, and a reliance on a breach of that new condition alone. And even in Thouvenin v. Lea, supra, it does not appear definitely that the reliance for recovery was on a breach of the "additional stipulation." The only cases which I have been able to find where the proposed amendment varied the legal effect of the contract first pleaded are Lamar v. Lamar, 118 Ga. 850,45 S.E. 671, Livingston v. Malever, 103 Fla. 200,137 So. 113, and Thomas v. B. O.R. Co., (D.C.) 300 Fed. 470, and in each of these the court refused to allow the amendment on the ground that a new cause of action was stated thereby. I am of the opinion that the general rule of law to be applied to amendments of this nature is correctly stated in the Kunselman case,supra, and that the proper application of that rule would sustain the trial judge in his action in refusing to allow the amendment.
There are a number of other points raised on the appeal, but since this is the principal one discussed by the majority of the court and the one upon which they have relied chiefly for a reversal of the case, *Page 280 and since most of the others on which I differ from the majority involve merely the erroneous construction of a specific contract, and not the establishment of an erroneous general principle, and, therefore, are not likely to create a dangerous precedent, it is unnecessary for me to refer to them other than to say that I think if the correct rule were adopted in regard to the trial amendment, the other alleged errors are not sufficient to require a reversal of the case.
The judgment should be affirmed.