The defendants have filed a petition for a rehearing accompanied by comprehensive briefs. We shall first consider the criticisms which they make of the statement of facts contained in our opinion.
Our decision, referring to the estate of Matt Mosgrove, deceased, says: "The inventory and appraisement of the latter indicated a value of $69,108.59. Its indebtedness aggregated $20,021.16, leaving a net worth of $49,087.43. Out of the latter $8,000 was drawn with which the trust bequeathed by Matt in behalf of *Page 541 Charles's children was established." The briefs accompanying the petition for a rehearing, after quoting the sentence which we have just repeated, states concerning it: "There is no word of evidence in the record to justify the statement by the Court in its opinion, and it results in a reflection upon a man now dead, and an outright injustice to his memory." We fail to understand how such conduct upon the part of Thomas could reflect unfavorably upon him. It will be recalled that Thomas was the son of Matt and the nephew of the deceased William, with whom we are primarily concerned. Matt's will, after bequeathing $8,000 in trust for the benefit of the children of his brother Charles, nominated Thomas as executor and provided that he should invest this $8,000 fund and hold the purchased items in trust for Charles's children. Thomas made the investment by purchasing some Canadian land. It is true, as the defendants argue, that Thomas's widow testified that her husband purchased the land with his own funds, but she is a partisan and, as shown in our previous decision, her information concerning her husband's financial transactions, although avowed by her to be complete, was only partial. The following facts, we believe, indicate that the statement quoted above is supported by substantial evidence. Matt died in January, 1926. March 5, 1929, Thomas signed a Declaration of Trust from which we now quote:
"WHEREAS Matt Mosgrove, of Milton, Umatilla County, Oregon, by his last will and testament gave and devised unto his son, Thomas H. Mosgrove, the executor named in his will, in trust, the sum of $8,000.00, and by his said will directed his trustee to invest the same * * *
AND WHEREAS I, Thomas H. Mosgrove, the executor and trustee named in the will of Matt Mosgrove, *Page 542 have pursuant to the direction therein contained and as hereinbefore set out invested the sum of $8,000.00 by purchasing the following land * * *
AND WHEREAS I made the said purchase and made the said investment in compliance with and pursuant to the will of the late Matt Mosgrove as in part hereinbefore recited * * *
NOW THEREFORE this agreement and declaration WITNESSETH that in consideration of the premises and pursuant to the will of the late Matt Mosgrove, I HEREBY AGREE AND DECLARE that the land and premises * * * is held by me in trust for * * * according to the terms of the will of the late Matt Mosgrove, and I do stand seized and possessed of the said land and premises in trust for them, and subject to the terms of the said will and will pay the income derived therefrom * * * and otherwise dispose of the same in such manner as the said Matt Mosgrove in his will directed, and will hold the same in trust pursuant to the said will * * *."
The only other criticism which the defendants make of our statement of the contents of the record is to direct attention to the fact that the prayer which concludes the complaint does not directly employ the term "an accounting." Our previous decision stated: "The prayer was inclusive and among other things asked for * * * an accounting." It is true that the term "an accounting" is not found in the prayer, but we believe that the prayer, which is lengthy, is reasonably susceptible to the interpretation that the plaintiff sought an accounting. She could not have been awarded the relief suggested by the facts narrated in her complaint unless an accounting was first had. Further, the prayer asked "for such other and further relief as to a court of equity may seem meet and * * *." It is well established that the prayer is no part of the *Page 543 cause of suit or of action, and that ordinarily a party is entitled against answering defendants to any relief warranted by the facts set up in his complaint. This is especially true when the prayer, like plaintiff's, seeks general relief. We do not believe that our statement of the facts is erroneous.
The defendants argue again that the circuit court improperly permitted the plaintiff to make the amendment to her complaint which we set forth in our decision. Concerning our decision, they say: "In this portion of the opinion the Court does not pass upon the question of whether or not the amendment changed the cause of action." It will be recalled that the amendment was made after both sides had rested, but that the order authorizing it added: "Ordered that this cause be continued to permit the defendants to introduce any additional testimony they may desire to offer." Following the amendment the defendants excepted but offered no evidence.
Section 1-906, Oregon Code 1930, which is the part of our laws which governs this issue, grants to trial judges a discretionary power to permit amendments before a cause is submitted, provided the amendment "does not substantially change the cause of action." The term "cause of action" employed in this section is the piece de resistance which has caused the trouble in the application of this section of our laws. In the stretching, hauling, pulling and contracting to which this phrase has been subjected it has made its way into that group of terms which lacks unity of signification. For a review of many of the definitions which have been placed upon this term, see UnitedStates v. Memphis Cotton Oil Co., 288 U.S. 62, 77 L. Ed. 619,53 S. Ct. 278; East Side Mill Co. v. Southeast Portland Lumber *Page 544 Co., 155 Or. 367, 64 P.2d 625; The Code "Cause of Action", Clark, 33 Yale Law Journal 817; Actions and Causes of Action, McCaskill, 34 Yale Law Journal 614; and The Code "Cause of Action" Clarified by United States Supreme Court, Arnold, 19 A.B.A. Journal 215. Mr. Justice Cardoza, taking a practical attitude toward the term, in United States v. Memphis Cotton OilCo., supra, says: "It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata." He goes on with an enumeration of other phases of the term, but we are concerned with only one application of the term, that is, its meaning in our statute governing amendments which do not substantially change the cause of action.
Judge Clark, who at the time he wrote his article was an instructor in the Yale School of Law but who subsequently became author of Clark on Code Pleading, reporter of the Advisory Committee on Rules of Civil Procedure appointed by the United States Supreme Court, and still later Judge of the Federal Circuit Court, in his above-cited article, commends highly the following analysis of the term "cause of action" given in Phillips, Code Pleading, § 30:
"The question to be determined at the threshold of every action is, whether there is occasion for the state to interfere. Therefore, when a suitor asks that the public force be exerted in his behalf, he must show that there is, prima facie, occasion for the state to act in his behalf. That is, he must show a right in himself, recognized by law, and a wrongful invasion thereof, actual or threatened. And since both rights and delicts arise from operative facts, he must affirm of himself such investitive fact or group of facts as will show a consequent *Page 545 legal right in him, and he must affirm of the adversary party such culpatory fact or facts as will show his delict with reference to the right so asserted. The formal statement of operative facts showing such right and such delict shows a causefor action on the part of the state and in behalf of the complainant, and is called, in legal phraseology, a cause ofaction."
Judge Clark expresses his own conception of the meaning of the term in the following words:
"The cause of action under the code should be viewed as an aggregate of operative facts which give rise to one or more relations of right-duty between two or more persons. The size of such aggregate should be worked out in each case pragmatically with an idea of securing convenient and efficient dispatch of trial business."
He suggests:
"It seems that a single cause may give rise to innumerable rights. And the extent of our cause and the number of persons it may affect must be determined having in mind our main purpose, above referred to — convenient, efficient trial work. So our cause should be as extensive a history as we can conveniently and efficiently handle as a single unit, and without injury to substantive rights."
In his volume on code pleading, Judge Clark, in stating his conception of a cause of action under the codes, points out:
"The number of such facts to be considered as a single unit will vary in different cases, but should be governed by reasons of practical convenience, and a change in such facts should not be a change in the cause of action so long as the essential fact situation remains the same. * * * Under this more flexible view of the restriction it is possible to allow amendments freely *Page 546 where they relate to the same general acts or events set forth in the original pleading."
In his aforementioned article he declares: "There is no royal road to pleading for either bench or bar." He favors a flexible application of the term, pointing out that in flexibility "there is thus afforded a pragmatic instead of a purely arbitrary application of procedural rules. This would leave a considerable choice to the pleader himself, but still more it would leave much to the discretion of the trial judge, who after all is the one upon whom the responsibility of getting trial work done must rest." He illustrates his point of view thus:
"A cause of action may consist of operative facts a, b, c, d, and e. The substitution of fact f for fact e may not make a new cause of action; while the substitution of facts f and g for facts d and e may. Our test is not absolute identity of all the operative facts, but whether the number of operative facts common to each situation is sufficiently large to make the treatment of the cause as a unit desirable for convenient and efficient trial work."
Professor McCaskill, in his above-cited treatise, criticizes Clark's definition by stating: "It is attractive but elusive." He adds: "We are certain to be impressed with the aim of administrative convenience stressed by Professor Clark. Likewise, we should be sympathetic toward that amount of flexibility in the action which will make it possible to attain this aim." But, having bestowed this commendation, the writer destroyed its effect by declaring: "Leaving to the trial judge the fixation of the scope of the cause of action does not make for administrative convenience." Professor *Page 547 McCaskill gives his conception of the meaning of the term "cause of action" in the following language:
"I think we are now prepared to give a fairly accurate definition of the cause of action. It is that group of operative facts which, standing alone, would show a single right in the plaintiff and a single delict to that right giving cause for the state through its courts to afford relief to the party or parties whose right was invaded. The singleness of the right and delict is determined by a study of the old remedies in connection with which the concepts as to singleness of rights and delicts developed."
This definition, while possibly an excellent one for pedagogical purposes, is too abstruse to serve the needs of a trial judge who is intent upon framing the issues between the parties in such a practical way that the dispatch of judicial business will be facilitated.
Code pleading was the product of a natural aversion to the defeat of meritorious claims through the employment of pleading-technicalities. All seem agreed that the commissioners who framed the Field Code admired the flexible character of the principles of equity pleading and disliked the rigid rules of common law pleading. The manner in which flexibility has demonstrated its practicability is indicated in the newer methods of pleading; for instance, Rule 15 of the new Federal Rules, written by the Advisory Committee with which Dean Clark served, places only the following limitation upon the power of the courts to permit amendments: "Leave shall be freely given when justice so requires." A claim for relief under the new Federal Rules need not contain anything more than "a short and plain statement of the grounds upon which the court's jurisdiction depends" and "a short and plain statement of the claim showing the pleader is entitled *Page 548 to relief." The English practice (Rules of the Supreme Court, Order XXVII) provides: "The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his endorsement or pleadings, in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties." Thus, it is possible to write rules governing pleadings without employing the troublesome term "cause of action," and certainly the merit of the newer methods is largely the result of the flexibility which they employ. However, the phrase "cause of action" is found in our laws and we must now determine its meaning. It is our belief that one is more likely to gain a correct conception of the meaning of the term by being guided by those who favor the changes which the code commissioners sought to achieve than by reviewing the decisions to which Chief Justice Winslow, in his oft-quoted language, referred (McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445, 33 L.R.A. (N.S.) 264), when he said, "The cold, not to say inhuman, treatment which the infant Code received from the New York judges is matter of history."
Courts which are not over-attentive to the ancient common law forms of action, and which view the process of framing the issues, not as mere application of dry formulas but as a practical means whereby the controversy between the parties may be ascertained and stated in convenient form for judicial attention, experience no difficulty in the application of Judges Phillips' and Clark's definitions of a cause of action. They regard the term "cause of action" as one which is broadly descriptive, and deem that its use is purely *Page 549 practical. In Friederichsen v. Renard, 247 U.S. 207,62 L. Ed. 1075, 38 S. Ct. 450, the court held that a new cause of action was not alleged when a complaint, which averred that the plaintiff was induced through the defendant's fraud to sign a contract for an exchange of properties, was amended in such manner that the cause was transferred from the equity to the law side of the court and the relief sought by the amended complaint was damages in lieu of cancellation prayed for in the original pleading. InUnion Central Life Insurance Co. v. Deschutes Valley LoanCo., 139 Or. 222, 3 P.2d 536, 8 P.2d 587, and Cook v. VanBuskirk, 127 Or. 206, 271 P. 728, we reached the same result — with the aid, however, of Oregon Code 1930, § 6-102. For a citation of other decisions similar to Friederichsen v. Renard, see Bancroft's Code Pleading, Practice and Remedies, § 530, and 49 C.J., Pleading, p. 520, § 686. In the Friederichsen decision the court held that the filing of the original complaint, not the amended pleading, determined the limitation period, and that since the amended pleading did not state a new cause, the plaintiff was entitled to recover even though the period had elapsed when the amended pleading was filed. The decision, obviously sound, was a departure from old traditions. But the very purpose of new laws is to break away from old ideas.
The declaration in Missouri, Kansas Texas Ry. v. Wulf,226 U.S. 570, 57 L. Ed. 355, 33 S. Ct. 135, Ann. Cas. 1914B, 134, before amendment, described the plaintiff as the sole beneficiary and next of kin of the deceased, and referred to a statute of Kansas which gave a right of action for injuries resulting in death. As amended, the pleading retained these averments but *Page 550 added that the plaintiff, since the filing of the original complaint, had been appointed administratrix of the deceased's estate, and averred that not only the statutes of Kansas but also a congressional act afforded her a right of action for the death of her son. The amendment was made after the period of limitations had expired. The court held that the amendment did not substantially change the cause of action, and affirmed the judgment recovered by the plaintiff under the Federal act. InNew York Central R.R. v. Kinney, 260 U.S. 340, 67 L. Ed. 294,43 S. Ct. 122, the original complaint set forth facts constituting a cause of action (a) under the common law, (b) under a New York statute, and (c) under a congressional act, depending upon which of these laws was applicable. Reliance upon the state statute was indicated by an averment that a notice required by it had been given. After several trials had taken place and after more than seven years had passed since the complaint was filed the plaintiff was permitted to make an amendment which averred that at the time of his injury the parties were engaged in interstate commerce. He then obtained a judgment under the Federal Employers' Liability Act. In holding that the amendment did not introduce a new cause of action, the court declared that it merely expanded or amplified the original pleading.
The question whether a change from express contract to quantummeruit is permissible was propounded to and answered by this court in Richardson v. Investment Co., 124 Or. 569, 264 P. 458,265 P. 1117: "Did plaintiff introduce a new cause of action in changing from one upon express contract to one upon quantummeruit? We answer in the negative." See to same effect 49 C.J., Pleading, p. 523, § 693. *Page 551
From 49 C.J., Pleading, p. 522, § 691, we quote:
"Except in jurisdictions where it is held that no amendments are permissible which change the form of the action, it is very generally held that, so long as the cause of action itself is not changed, it is permissible to change by amendment the form of action in an action ex contractu to a different form of action ex contractu. Assumpsit may be changed to covenant or debt, or the form of action may be changed from covenant to assumpsit, or from debt to covenant. So an action begun in assumpsit may be changed to account."
In Chickasha Cotton Oil Co. v. Radney, 172 Okla. 368,45 P.2d 54, the complaint charged the defendant, operator of a cotton gin, with liability for a quantity of cotton. The original complaint alleged that after the defendant had taken possession of the cotton it negligently permitted it to be destroyed by fire. The amended complaint, after charging a contractual bailment, alleged delivery and a failure to return upon demand; in other words, the plaintiff changed his cause from tort to contract. The Oklahoma statute authorized an amendment of a pleading which "does not change substantially the claim or defense." The court held that the amendment was not beyond the purview of this code provision and that recovery was not barred by the statutory period of limitations which had not expired when the original complaint was filed. See further 49 C.J., Pleading, p. 524, § 694. In Lieuallen v. Mosgrove, 37 Or. 446,61 P. 1022, this court held that the code provision concerning amendments quoted in a preceding paragraph was not violated when the plaintiff was permitted to amend his complaint by inserting in it the appropriate averment of negligence after a judgment for him had been reversed (Lieuallen v. Mosgrove, 33 Or. 282,54 P. 200, 54 P. 664) because recovery *Page 552 had been awarded upon a claim for negligence not alleged. InIbach v. Jackson, 148 Or. 92, 35 P.2d 672, this court held that an amendment which amplified the specifications of negligence set forth in the original complaint and added another did no violence to the code section under review. From 49 C.J., p. 523, § 692, we quote:
"Except in jurisdictions where amendments changing the form of action are not permissible, it is held that amendments changing the form of action in an action ex delicto to another form of action ex delicto are permissible, provided the cause of action itself is not changed. Thus trespass may be changed to case and vice versa, an action for possession to one for conversion, an action for malicious prosecution to one for false imprisonment, an action of forcible entry and detainer to ejectment, and trespass may be changed to trover or replevin. * * *"
We shall not attempt to state in our own words our conception of a cause of action. The definitions given by Judges Phillips and Clark are excellent. We adopt them as our own. They are much more in keeping with the spirit of code pleading, in our belief, than the definition given by Professor McCaskill. The latter appeals to us as a return to the discredited rigidity of common law pleading; and a return to it would be most unfortunate after flexibility has demonstrated its merit.
The primary purposes of the code were satisfied when it appeared from the averments of the complaint that Thomas Mosgrove accepted the office of trustee of the bequest left by his uncle; that he (Thomas) died after receiving the fund but before accounting for it; that the plaintiff, as his successor, had become entitled to receive the trust res; and that the *Page 553 executor of Thomas's estate had refused the plaintiff's demands. It is true that the original complaint averred that Thomas had collected in full upon the note, and that the amended complaint averred that collection had either been made or could have been accomplished through the exercise of reasonable diligence. The defendants argue that the original complaint which averred collection constituted an election of remedies and that, hence, we have an additional reason why the amendment should not have been allowed. But, as was pointed out in Friederichsen v.Renard, supra, "for obvious reasons it (election) has never been a favorite of equity." It will at once be observed that the amendment did not aver facts showing that the plaintiff was entitled to the pursuit of two possible remedies between which she had a choice, but merely averred facts in alternative form. Thus, there could be only one remedy depending upon which alternative was true. When the amendment was made it appeared from the evidence that a total of $5,315.30 had been deposited in the T.H. Mosgrove Trustee account. The defendants had insisted that this account was not made up of deposits of the funds of the William Mosgrove $5,000 trust fund. In order to meet this argument the plaintiff had introduced evidence indicating that if Thomas had not collected upon the note he had had plenty of opportunities for so doing while those liable upon it were solvent. The alternative averments were made because the plaintiff lacked information concerning the facts. This is not an instance concerning an election of remedies, because in no event was more than one remedy available. Moreover, a remedy pursued in ignorance of coexisting facts which afford the basis of an alternative remedy is not deemed an election — it is regarded as a *Page 554 mistake. The present instance is nothing more than an averment of facts in alternative form.
From the evidence stated in the preceding paragraph it is evident that the amendment merely conformed the pleading to the facts. It is plain that the amendment related to the same transaction that constituted the subject-matter of the complaint. After the amendment the essential fact situation remained the same as before. The original complaint had merely been amplified. If the test of whether a proposed amendment will substantially change a cause of action is to inquire whether the amendment will facilitate the convenient, efficient dispatch of the business before the court — and we believe that such is the correct test — then it is evident that this amendment met that test. We say that the amendment met that test, because after its allowance neither party felt it was necessary to offer additional proof. Thus, by allowing the amendment the entire cause was determined, and the useless ceremony of dismissing this suit in order that another complaint incorporating the additional averments might be filed, was avoided. We are firmly convinced that the amendment did not substantially change the cause of action narrated in the original complaint. The defendants' criticism of our decision has not caused us to alter our previous views.
The defendants state: "In the absence of any evidence whatsoever on the part of Thomas H. Mosgrove in selecting the depository, there is no warrant in law for holding Thomas H. Mosgrove's estate liable for the amount of the deposit." It will be recalled that the T.H. Mosgrove Trustee account was with a bank which was subsequently liquidated by the superintendent of banks and that the defendants, in their pleadings and *Page 555 throughout the trial, denied that Thomas had ever become trustee. In view of the latter defense, whether he in good faith or otherwise selected the bank as depository was not an issue.Knowlton v. Fourth-Atlantic National Bank, 271 Mass. 343,171 N.E. 721. But in any event the burden was upon Thomas's estate to establish all credits to which he was entitled. From Bogert, Trusts and Trustees, § 971, we quote:
"The burden is on the accounting trustee to prove to the satisfaction of the court the merit of all claims for credit which he makes."
See to similar effect 65 C.J., Trusts, p. 904, § 799. The record does not indicate the amount realized in the liquidation of the T.H. Mosgrove Trustee account. In these days when many supposedly insolvent banks have satisfied in full the deposit claims, leaving in some instances something for the stockholders, it may be that the T.H. Mosgrove Trustee account has been paid in full. Since the record is silent, the issue must be resolved against the defendants who failed to discharge the burden of proof resting upon them.
Finally, the defendants argue once more that the plaintiff's cause was barred by the statute of limitations. As stated in our original opinion, since this defense was not alleged, it cannot be considered. We still adhere to that belief, but add that if the defense had been available the facts prove that the plaintiff's claim was not barred by an intervening limitation period.
It follows from the above that the petition for a rehearing is denied.
RAND, C.J., and KELLY, BELT and BEAN, JJ., concur. *Page 556