dissenting. It is with a good deal of reluctance that the writer ventures to dissent from the conclusion which his colleagues have announced in this case. Not only is he impressed with the line of reasoning offered in support of the rule laid down, but he recognizes that the view here presented may seem on its face to ’run counter to the general trend and current of modern authority. Still, we are dealing with fundamentals, and however broad and liberal the right of amendment has grown to be, there yet remain three absolute limitations upon the legal exercise of this valuable right and privilege. There must be enough in the pleadings to amend by; new and distinct parties must not be added; nor can a different cause of action be substituted. Plain and simple as these rules would seem to be, it is nevertheless universally recognized that the basic and most- elementary principles of the law ofttimes present perplexing problems in their proper application. In the instant case no question arises as to a change of parties. It is also manifest that the original petition correctly set forth a cause of action, full, adequate, and complete in every detail. Consequently, there can be no question that it carried enough to amend by, so long as the ground of complaint remained the same. Not only were the original allegations of -the petition perfect and complete, not only did the averments correctly set forth all the facts, but they set forth the only facts that could possibly support “the cause of action which was evidently originally intended to be declared upon.” Civil Code (1910), § 5682. How then can that be added to which is already complete? How can errors and inaccuracies be eliminated when none do or can exist? If the original petition was perfect in that *116it correctly set forth all the facts, and the only facts, which conld support the cause of action actually sued on, then the statement of the ground of complaint could not possibly be aided by amendment; and if materially altered, it would seem necessarily to follow that a substitution of the cause itself had been effected.. The plaintiff’s case broke down, not because a perfect cause of action was not declared upon, and the only appropriate remedy prayed for, but because it was unable to prove the ground of its complaint. This was true because the cause of action which had been alleged did not exist. But it is said by my colleagues that one of the most important offices of the amendment is to avoid a variance between the allegata and probata. True, but this can be done only in so far as the amendment seeks to set forth “ additional matter descriptive of the same wrong pleaded in the original petition, and which does not plead any other or different wrong.” Walker v. Berger, 148 Ga. 326, 331 (96 S. E. 627) .
In the syllabus of the majority opinion it is stated that the “vendor’s cause of action was the vendee’s breach of contract, and the only purpose of the amendment was to prevent a variance between the allegata and probata as to the measure of damages which the plaintiff was entitled to claim under his extrajudicial election of remedies before the filing of the suit.” If this statement of what constituted both the original and the amended ground of complaint,' and as to the purpose and effect of the amendment, be correct, the conclusion is sound and must follow. It presupposes that the breach by the vendee of its original contract of purchase constitutes the only wrong complained of both under the original petition and under the 'amendment. The case of City of Columbus v. Anglin, (120 Ga. 785, 48 S. E. 318), is quoted from as follows: “ So long as a plaintiff pleads but one wrong, he does not set up more than one cause of action. . . . So long as the facts added by the amendment, however different they may be from those alleged in the original petition, show substantially the same wrong in respect to the same transaction, the amendment is not objectionable as adding a new and distinct cause of action.” It is the opinion'of the writer that, while the original suit is plainly based upon the breach by the vendee of its original contract of purchase, the wrong complained of being its failure to take and pay for the goods as agreed, the amend*117ment is not based upon this “ same wrong in respect to the same transaction.” The new wrong, it is true, may relate to the same transaction, and the new wrong may be said to have arisen out of, or by virtue of, the original breach of the private agreement; but the ground of complaint set up by the amendment is essentially separate and distinct. It consists solely in the failure of the defendant to comply with a new and distinct obligation — one which it in fact has never in any wise agreed to perform, but which the statute law has imposed upon the vendee as a conquence of the vendor’s mode of procedure taken thereunder. Under the amendment, the failure of the defendant to pay the difference between the contract price of the goods and the price on resale is the direct cause of complaint, and the wrong thus complained of is new, separate, and distinct. Neither the contract nor the common law gave to the plaintiff the rights or the remedy which he now insists on, nor did they impose upon the defendant the obligation which the plaintiff now insists he has breached. The petition as filed treated the sale as unexecuted, the goods as having been retained, and the title thereto as remaining in the vendor; the wrong alleged consisted solely in the breach by the vendee of his original contract to purchase; and the prayer for damages was measured by the difference between the contract price and the market price at the time and place for delivery. There is not a fault, flaw, or deficiency in this declaration. By the amendment the plaintiff pleads facts in no wise “ involved in the cause of action which was evidently originally intended to be declared upon.” It now treats the sale as executed, and the title to the goods as having passed to the vendee, and alleges acts and conduct on its own part, not as in due performance of its original contract of sale, but as done in accordance with its optional rights under the statute.
By its amendment the plaintiff sets up a new and distinct claim, which has accrued solely by virtue of its procedure under the statutory law; and invokes the aid of the court in enforcing against the defendant an obligation thus devolving upon it, not by virtue of its. contract, but solely by virtue of such procedure. The wrong complained of by the amendment is not the breach of the original contract at all. This could not be, since the vendee is no longer under obligation to take the goods under a con*118tract which, has already been thus executed, but is now required to meet the new and distinct obligation — not contractual, but one which has devolved upon it by virtue of and in accordance with plaintiff’s optional procedure under the statute. The wrong now complained of consists'solely in the failure of the defendant to pay the difference between the contract price of the goods and 'the price when resold by the vendor as its agent. This it has never in any way agreed to do; but, under the facts alleged, the statute makes this its duty. While the original suit was based upon the breach of an alleged unexecuted private contract, the amendment is based upon a totally distinct wrong, the ground of complaint being that the vendee has failed to comply with a purely statutory obligation, arising only indirectly and remotely out of the original breach, but directly out of the statutory procedure taken for its execution. Not only are the original cause of action and the one set up by amendment altogether different, but, as has been already shown, they are totally inconsistent. As is pointed out in the majority opinion, the three code “ methods of procedure are extrajudicial, and if the seller adopts one of them, it excludes his right to the others.” This is true because they are not only different, but absolutely inconsistent. “While one may pursue any number of concurrent and consistent remedies, he will not be permitted, after the choice of one of two or more inconsistent remedies which he might originally have pursued at his option, to change his base and adopt a course wholly inconsistent with the remedy which he first selected.” Kennedy v. Manry, 6 Ga. App. 816 (1) (66 S. E. 29). I agree with my colleagues that the extrajudicial mode of procedure taken by the vendor, in selling the goods as the vendee’s agent and charging the vendee with the deficit thus arising, consituted its true election; and that, for this reason, its mere mistake in bringing the kind of action it did should not be treated as an election, since at that time it had no choice, and that consequently it should, not be precluded from maintaining a subsequent action based on the cause actually accruing under the procedure of its first and real election.
The real line of demarcation between the views expressed in the majority opinion and here seems to lie in the fact that, as I see it, the course and conduct of the vendor in executing the contract, giving the notice, reselling the goods, and charging the defendant *119with the deficiency thus arising, entered into and affected its rights, as well as fixed its remedy. In other words, it would seem that the statute provides a choice of distinct and inconsistent methods of procedure, as well as judicial remedies appropriate to the mode adopted. Before the vendor acted as it did, it was perfectly free to do as it tried to do, that is, to bring its common-law action for the breach of the unexecuted contract, and claim as its damages the difference between the contract price and the market price of the goods at the time and place for delivery. It originally had this right, and the remedy appropriate thereto, but it did not exercise it. By pursuing the course it did, however, its acts and conduct entered into and affected-not only its remedy, but the cause of action itself. It executed the contract, and no longer could complain that it was unexecuted. It resold the goods, and no longer could complain that the vendee refused to take them. Its rights under the contract became exhausted, and there the matter would have ended, but for the statute, which imposes new rights and new obligations. Code-section 4131 is not merely declaratory of the common law. It does not purport to be. The first of these options existed under the old common-law rule; but the second mode of extrajudicial procedure, when adopted, gives to the vendor new, definite, and distinct rights, and provides for a' new and distinct obligation on the part of the vendee. North Ga. Milling Co. v. Henderson Elevator Co., 130 Ga. 113 (2), 117 (60 S. E. 258, 24 L. R. A. (N. S.) 235). Under the second mode of procedure, the vendor’s rights on the one hand, and the vendee’s obligations on the ’other, do not in any wise arise directly out of the contract and its breach, but accrue by virtue of the vendor’s conduct under the code procedure, and by that alone. The new right is such as the contract did not give, and the new obligation is such as the contract itself did not impose. Thus, it would seem that the amended suit was not for the breach of the original contract, but was necessarily based solely on the obligations devolving upon the vendee in consequence of the vendor’s statutory procedure. The original breach can only be taken as a mere inducement, precedent to the wrong which furnishes the actual ground of complaint. The acts and conduct of the vendor were such as to fix and determine both its rights and its remedy.
*120The relationship of the parties has much to do with-determining the nature and character of the cause of action. Here in the first instance the plaintiff depended for its recovery upon the obligation imposed by the contract; in the latter instance upon an obligation existing not by virtue of the contract, but arising subsequently and solely by virtue of the optional acts and extrajudicial conduct of the plaintiff as taken in accordance with its rights and privileges under the statute law. In the one case the relationship of the parties is governed by the obligation imposed by the contract; in the other the relationship is created and determined solely by a totally distinct obligation growing out of the plaintiff’s acts and conduct under the .statute law. See, in this connection, Central of Ga. Ry. Co. v. Williams, 105 Ga. 70, 72 (31 S. E. 134). It might be mentioned that the learned and distinguished trial judge, while a member of the Supreme Court, expressed a personal doubt as to the soundness of the rule in the Williams case. Central of Ga. Ry. Co. v. Hunter, 128 Ga. 600, 604 (58 S. E. 154). The rule of the Williams case, however, remains of force, with whatever applicability it may have, and the criticism made thereof in the Hunter case was expressly limited by Mr. Justice Cobb to an expression of a personal doubt.
But my brethren say that the amendment simply asked for the application of a different “ statutory measure of relief.” If this was all it did, I would agree with them in saying that it was proper and should have been allowed. The authorities cited in the majority opinion are ample to sustain the proposition that the mere measure of damages prayed for in a petition may be so amended as to make it properly conform to the allegations setting forth the wrong actually complained of. But this rule would not have application where the original measure of damages is not only correctly laid, but represents the only legal and proper basis of compensation under the cause of action declared on, and where, in order to amend the measure of damages, it is also necessary to substitute a new, distinct, and totally inconsistent claim. That the measure of damages is different might be immaterial, but not so when the measure of damages is different for the sole reason that the cause of action itself is different. While the remedy grows out of the wrong, or, to state it conversely, while the cause of action gives rise to the remedy,, the *121terms are not really synonymous. The word "remedy,” when properly used, signifies and is limited to the judicial means or method whereby the cause of action may be enforced, including also the application of the measure of damages appropriate to the relief sought. If the measure, or even the nature and character of the relief sought, proves inappropriate to the theory, nature, and character of the action as actually declared on, there is nothing to prevent a correction of such a mistake, since the cause of action itself is thereby unaffected. The rule which thus permits an amendment setting up a new and correct measure of damages for the cause of action originally sued on does not, however, permit an alteration of the cause of action itself so as to make it conform to the new measure of damages. Indeed, as was said in the case of City of Columbus v. Anglin, supra, whether the same measure of damages would be applicable may throw light upon the question as to whether a proposed amendment would have the effect of changing the cause of action. While a mere change of the measure of damages is not in itself prohibited, the fact that an amendment pertaining to the cause itself would render necessary an additional amendment changing the measure of damages may indicate that the ground of complaint itself has been changed. In other words, the fact that one amendment may require another changing the measure of damages can be regarded as a symptom that the first is fatal.
Recurring to the case of City of Columbus v. Anglin, the following language is there used: "A number of tests have been suggested for determining whether an amendment adds a new cause of action. One general test is said to be, ‘ whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.’ 1 Enc. PI. & Pr. 564. Other tests, some of them admittedly fallible, have been suggested in different cases, — as (1) whether the original petition and the amendment would be subject to the same plea (Goddard v. Perkins, 9 N. H. 488); (2) whether the same evidence would support both (Scovill v. Glasner, 79 Mo. 449); (3) whether the same measure of damages is applicable to both (Hurst v. Railway, 84 Mich. 539 [48 N. W. 44]); (4) whether both could have been pleaded cumulatively in the same count *122(Richardson v. Fenner, 10 La. Ann. 600); (5) whether an adjudication upon one would bar a suit under the other (Davis v. Railroad Co., 110 N. Y. 646 [17 N. E. 733]). Of these, the last mentioned is probably the best and most useful, though even it comes back at last to the question whether the cause of action is the same.” Applying these rules to the amendment in the instant case, it will be readily seen that it fails to meet a majority of the tests proposed. The original petition and amendment would not be subject to the same plea; neither the same evidence, nor even the same character of evidence, would support both; the measure of damages is not the same, as is necessarily recognized by what has been quoted from the majority opinion; they both could not be "pleaded cumulatively in the same count; and finally, even an adjudication that the notice for a resale had not been given, and that the goods had not been resold, would not seem to bar a subsequent action on the breach of the original contract. Acree v. Bandy, 22 Ga. App. 454 (96 S. E. 329). See also the following cases, as bearing upon the question generally: Baldwin v. Western Union Tel. Co., 93 Ga. 692 (2) (21 S. E. 212, 44 Am. St. R. 194); Horton v. Smith, 115 Ga. 66 (41 S. E. 253); Steele Lumber Co. v. Laurens Lumber Co., 98 Ga. 329, 331 (10) (24 S. E. 755).
The gist of all that has been here said is based upon the theory that the amendment did not merely seek to apply a new measure of damages appropriate to the cause originally pleaded, but that it sought to plead new facts, setting up a new, distinct, and inconsistent right, arising not under the contract but by virtue of the mode of procedure taken under the statute; that a new and distinct statutory obligation was thus created, which the contract itself did not impose; that the new wrong actually complained of lay solely in the failure of the defendant to meet this, his new obligation, imposed not by the contract, but growing out of the statutory procedure; that the only remaining judicial remedy which the plaintiff now had was not to enforce the contract already executed, but to enforce the new statutory obligation, into which all remaining duties of the vendee had been merged; and that, since the original suit proved wholly futile, the new, different, and totally inconsistent cause of action could not be grafted thereon by amendment.