concurring. I concur with the holding of my associates that the court erred in permitting the filing of the amendment to the petition. According to the original petition the action was filed for $10,000 due on the contract. For the purposes of my views it is not profitable to discuss whether the action is brought for a breach of the contract or for money due on the contract. In either aspect it is because the defendant has not kept its promise to pay $10,000 on June 1st.
The cause of action alleged in the petition, according, to its terms, arose June 1, 1914, and interest is claimed from that day. A cause of action arising *246on May 28, if the letter of that date constituted an anticipatory breach of the contract, was a cause of action as to which the statute of limitations would have run after the 27th day of May, 1929, and would be a different cause of action from one arising on June 1, on which suit cóuld be brought on May 29, 1929. The amendment changing from one of these causes of action to the other is not an amendment that “does not substantially change the claim” within the meaning of Section 11363. It alleges a different breach of the contract from that for which the original action was brought, and which the defendant was required to answer pursuant to the summons and precipe, showing an action for money only, amount claimed $10,000 with interest. Even if the plaintiff still could have maintained an action for an anticipatory breach subsequent to defendant’s conduct of June 25 and February 4, 1915, after the defendant had removed from the state and could not be reached here, its attempt to proceed under the amended petition, filed June 13, 1916, was an effort substantially to change the claim.
In view of the foregoing the questions raised and argued as to the right of the Express Company to cancel the contract, under paragraph XI of the agreement, are not properly before this court for consideration. If the determination of the right to cancel would affect the' cause of action for $10,000 set forth in the petition, it would be involved. However, as more fully set out in the opinion of the court, we conclude that even if the Express Company had the right to cancel, it would not affect its obligation with respect to the payment of $10,000, which, under the terms of the contract, it should have paid on June 1st, 1914. Therefore, I do hot express my views as to the construction of paragraph XI.