The following opinion on rehearing was filed October 5, 1904. Judgment of reversal adhered to:
Barnes, J.The defendants, in their brief and oral argument on the rehearing, strenuously contend that, by the amended petition, a new and different cause of action was stated from that set forth in the original petition; that, the new cause of action being barred by the statute of limitations, the trial court was right in sustaining the demurrer to the amended petition, and our opinion reversing the judgment of the district court should be set aside. The foregoing question is the only one fairly presented for our determination. This requires a careful examination of the pleadings, including the bill of particulars filed in the justice court where the action was originally commenced, and our former opinions herein. The bill of particulars, the original petition and the amended petition filed in the district court are set out in Commissioner Letton’s opinion (Gourlay v. Prokop, ante, p. 607), and it is unnecessary for us to quote them herein. It appears, by referring to that opinion, if the words, “said parties had said organ, stool and book for a reasonable time and did not sell the' same, and the plaintiff says that a reasonable time within Avhich to sell said organ, stool and book would be from 6 to 8 months/’ were stricken from the amended petition, the remaining allegations would be identical with those contained in the bill of particulars on Avhich the cause was tried in the justice court. If the amended petition states a cause of action for conversion, then the bill of particulars stated such a cause of action, if any. It seems from reading the opinion of Commission Albert (Prokop v. Gourlay, 65 Neb. 504), that the case was considered *613and treated therein as an action for conversion, for the learned commissioner made use of the following language:
“It is not easy to determine, from an inspection of the petition, whether the plaintiff’s action was brought to recover for damages sustained by reason of the negligence of his bailee's, or for damages for the conversion of the property by such bailees. But, as the evidence is insufficient to justify a recovery on the ground of negligence, and the plaintiff presented his case on the other theory, the sufficiency of the petition to sustain the judgment should be tested by the rules of pleading applicable to actions for conversion. Tested by those rules, 'the petition is insufficient. No time was fixed for the termination of the contract under which the property was left with Proleop by the plaintiff. That being true, the law will imply a reasonable time. In other words, the plaintiff would have a right to a return of the property only after the bailee had had a reasonable time in which to make the sale contemplated by the contract, and a demand before the expiration of such time would be premature. It will be conceded that, had the time been expressly fixed by the contract, the plaintiff in an action of conversion would have been required to allege the expiration of the contract, or some violation of it, to state a cause of action. The only difference between a case of that kind and the present is that in this case, instead of the time the defendants might retain possession of the property being expressly fixed by the contract, it is implied. It is just as essential that the expiration of the time be alleged, where it is implied, as where it is expressly stated, and the omission of such allegation is fatal to the petition in this case.”
It seems that, in response to the rule announced above, the averment first above quoted was inserted in the amended petition. Without doubt the bill of particulars filed in the justice court was somewhat defective, but it is clearly apparent that no attempt was made thereby to state a. cause of action against the defendants for negligence as bailees. There was an attempt to state a cause of action *614in conversion, and when the original petition was filed in the district court, a motion to strike out the new matter stating an agreement to safely store, keep and insure the property, if one had been filed, must have been sustained. Such allegations were insufficient to state a cause of action for negligence, were redundant and immaterial matter, and were very properly omitted from the amended petition. It seems clear that the action as commenced in the justice court was one for conversion. The original petition contained a statement of the same facts alleged in the bill of particulars; that petition was insufficient, as held in the opinion of Commissioner Albert, and. such deficiency was supplied by the amended petition. The cause of action, although sometimes defectively stated, has remained the- same from the filing of the bill of particulars to and including the amended petition in question herein. No new cause of action having been stated, and the commencement of . the action before the justice having interrupted the running of the statute of limitations, the district court erred in sustaining the demurrer.
For the foregoing reasons, our former opinion is adhered to.
REVERSED.