Only two questions need to be considered in order to dispose of all specifications of error; First, does the second amended petition so substantially, change plaintiffs' claim from that set up in the original and the *Page 16 first amended petitions that defendant's motion to strike and dismiss should have been sustained? Second, is the, cause of action set up in the second amended petition barred by the statute of limitation?
Section 5679 of the Compiled Laws of Oklahoma of 1909 provided that:
"The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or conform the pleadings or proceedings to the facts proved, when such amendment does not change substantially the claim or defense. * * *"
This section of the statute, with many other provisions of the Code now in force in this state, was brought into this jurisdiction by adoption from the state of Kansas. The Supreme Court of that state in 1892, just prior to the time of the adoption of the statute by the territorial Legislature, construed the foregoing section and applied it to a state of facts very similar to the facts in the case at bar. Culp v.Steere et al., 47 Kan. 746, 28 P. 987. That was an action commenced to recover damages resulting from the purchase and sale of a horse which had been purchased by the plaintiff under false and wrongful statements of the defendant as to the character and qualities of the horse, which adapted him to the particular purposes for which plaintiff purchased the horse. After the case had proceeded to trial and all the evidence of both parties had been introduced, the court in that case, as in the case at bar, discharged the jury and permitted the plaintiffs to amend their petition so as to show an express warranty by defendant that the horse was fit for the purpose for which he was bought and sold, and to ask for recovery for damages resulting from breach of the warranty. The appellate court held that the trial court committed no error in permitting the amendment. Mr. Justice Valentine in delivering the opinion said:
"The statute does not provide that the amendment shall not *Page 17 change the form of action or cause of action; but it simply provides that the amendment shall not 'change substantially the claim or defense.' Now we do not think that the claim of plaintiff in the present case was changed substantially by the amendment. The original petition attempted to set forth a cause of action for the recovery of damages resulting from the purchase and sale of a worthless horse, such purchase and sale being brought about by the wrongful statements of the defendant, and the amended petition sets forth a cause of action for substantially the same thing. The principal wrongs alleged in the amended petition were the wrongful statements made by the defendant, including a warranty that the horse was sound and good for the purposes for which he was bought and sold, when in fact he was not such a horse as he was warranted to be, and therefore that there was a breach of the warranty of the very time of the purchase and sale, for which breach the defendant was and is liable."
The foregoing case and the language of the opinion therein are directly in point. The only distinction between the facts in that case and the facts in the case at bar is that in the original petition in that case the action was founded upon the fraud of the defendant, and the amended petition was made to include a breach of the contract; whereas, in the case at bar, the original petition seeks to recover upon a breach of the contract by defendant, and it was amended so as to embrace his fraudulent acts in the same transaction as the basis of the action. When the amended petition was filed in that case, the statutory period within which to begin an action upon a contract had expired; but the court held that, since there was general identity of the transaction forming the cause of complaint in the original and amended petitions, and the original petition had been filed within proper time, plaintiff's right of recovery was not barred. This case has since been cited with approval by the same court. Snider v.Windsor et al., 77 Kan. 67, 93 P. 600. In the last-mentioned case, the original petition set up a cause of action for foreclosure of a mortgage, and the trial court permitted an amendment converting the action into one of replevin to replevy the property covered by mortgage. The action of the court permitting the amendment was held not error. *Page 18 Stevens v. Matthewson, 45 Kan. 594, 26 Pac., 38, was an action to recover a balance due on a contract for land. The defendant in his answer alleged that he was induced to enter into the contract by false representations respecting the land made by the plaintiff and his agent and pleaded a rescission of the contract. He was afterwards permitted to amend his answer so as to allege that the false representations were made with the intent to deceive him, and that he relied on them and was damaged by reason of the land not being as represented, and asked for judgment for his damages. This amendment was sustained by the appellate court. The identical provision of the Code here involved exists in a number of the states of the Union. Decisions construing and applying the same are not uniform, and some of the courts have held that an amendment changing the action from one ex contractu to one ex delicto, although growing out of the same transaction, is not permissible (Hackett v. Bank of California, 57 Cal. 335); but the tendency of all the courts is to give to said statute a liberal construction (Spice Son v. Steinruck, 14 Ohio St. 213;Williamson et al. v. Rock Island Pac. Ry. Co., 84 Iowa, 583, 51 N.W. 60), and some courts have held that the limitation that the amendment shall not change substantially the claim or defense applies only to an amendment offered after judgment, and it does not have the effect to prevent an amendment changing the cause of action offered before the trial (McDaniel v. Monroe Bros., 63 S.C. 307, 41 S.E. 456; Murphy v.Plankinton Bank et al., 18 S.D. 317, 100 N.W. 614). We do not cite the last two cases supra for the purpose of approving the rule therein announced, but to show the liberality with which the courts have construed and applied this section of the statute.
It has been so often decided that the construction of a statute made by the Supreme Court of Kansas before the adoption of the statute by the territorial Legislature is binding upon this court that the citation of authorities is not necessary, and our decision *Page 19 upon the questions raised by this proceeding is concluded by the foregoing cases from that jurisdiction.
The judgment of the trial court is accordingly affirmed.
All the Justices concur.