The subject matter of this action is an attorney’s fee to he collected by Norvell’s estate on a contingent fee contract, or contract for fee to be allowed Norvell, in an action before the Mexican Claims Commission. Plaintiff contends that while that action was pending Maben acquired from Norvell a fifteen percent interest in the fee for cash advanced to Norvell, and for assistance rendered in the case. The claim and action referred to as the “Mexicali” case was successful and the amount of the fee therein awarded and to be paid to Norvell’s estate in subsequent payments of installments is admitted. Both Norvell and Maben were elderly men, long time friends and experienced attorneys. Both men died within a few days of each other.
The evidence in the case is furnished by oral testimony, letters and documents, and oral testimony about the written documents.
There is a written assignment reciting that Norvell assigned to Maben a fifteen per cent interest in the attorney’s fee for $1,500 cash advanced and other assistance to be furnished by Maben on request. The . trial court found that the signature of Norvell on this assignment was a forgery though there was much evidence to the contrary.
Thereupon the trial court found generally in favor of defendant and denied plaintiff any recovery upon the conclusion of the trial court that the sole issue of fact to be determined was the validity of the said written assignment. We ob- . serve this statement in the findings of the trial court, to-wit:
“This suit is brought upon a written assignment. The genuineness of this assignment is the sole factual question which I am compelled to decide, or rather only the signature attached to that assignment purporting to he the signature of Woodson E. Norvell. The genuineness of that signature is the fact question involved.”
In thus restricting the issues to be determined we are convinced that the trial court was led into error. While the questioned assignment was attached to plaintiff’s petition, nevertheless the gist of the action was the claim of plaintiff, as ad-ministratrix, that the decedent Maben was entitled to fifteen percent of the Norvell fee, and that therefore the estate of Maben was entitled thereto. If that claim could be established either by a valid assignment or by contributions by Maben and letters or other written acknowledgments signed by Norvell, the result would be the same.
In this case there was proof of such contributions by Maben and of written acknowledgments by Norvell of unquestioned validity, other than the “assignment,” which tended strongly to fix Maben’s right to the claimed fifteen percent.
Not only is such proof apparent to us, but it was apparent to the trial court, as we observe this in the trial court’s findings:
“Were it not for plaintiff’s Exhibit No. 11, the decision on this particular fact question would not be difficult for me, but in plaintiff’s Exhibit No. 11, or rather from this exhibit, I am compelled to believe that at one time, at least, W. N. Maben had a fifteen percent interest in the Mexicali fee, and I refer to the first paragraph — ‘we are certain to get six hundred thousand dollars principal, and perhaps one hundred and seventy-five thousand dollars interest in the Mexicali case. There is just a possibility that we may lose this interest, but will make a fight for it. This interest would mean about twenty-six thousand dollars on your part of the interest alone.’ That figures almost 15% exactly, and from other correspondence in the case between these two gentlemen, I have concluded that at one time or other William N. Maben had a definite interest in the *427fee in the Mexicali case, hut that is not the issue for me to decide in this case.”
We think the true issue to he decided herein was whether the decedent, Maben, was entitled to a fifteen percent interest in the “Mexicali” fee, not merely whether a specific assignment presented by the plaintiff, administratrix, appeared to the satisfaction of the trial court to bear a valid signature.
After the trial court announced from the bench the findings from which the two quoted paragraphs are copied, the case was continued for further hearing. Thereafter, and because the issues of fact had been so restricted by the trial court as aforesaid, the plaintiff requested permission to amend her petition, and tendered her amended petition to allege that, irrespective of the assignment which the trial court was not willing to accept as valid, a joint venture or limited partnership was entered into and agreed upon between Maben and Norvell, during their lives, by the terms of which Maben, for valid and valuable consideration, would receive an interest of 1S’% in the attorney’s fee award to be made to Norvell in the “Mexicali” case; that Norvell had fully ratified the same and bound himself to it, in writing as shown by the aforesaid Exhibit No. 11, and other authentic writings in evidence.
Upon further hearing the trial court ruled as follows:
“Plaintiff’s request to amend petition overruled, exception allowed; judgment in addition to the informal decision heretofore made as to the facts, is entered for the defendant; exception allowed, plaintiff gives notice in open court of his intention to appeal. 60-10-5 for case made, all as per J. E.”
It is contended by plaintiff that the trial court abused its discretion in refusing to allow plaintiff to amend her petition to conform to proof.
Sec. 317, Title 12, O.S.A. provides in part as follows:
“The court, may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, * * * by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; * *”
We observe this text statement in 71 C.J.S. Pleading § 285 para. d.:
“Further amendments have been permitted changing the theory of recovery where the essential facts remain the same, changing the facts constituting a breach of trust, changing the basis of recovery from tort to contract or from contract to tort, from express contract to implied contract. * * ”
In the case of Krieger v. Marshall, Okl., 292 P.2d 379, 380, this court held:
“The statutes and also the decisions of the courts of this state are extremely liberal in permitting amendments to pleadings so long as such amendments are in furtherance of justice, and amendments which even change the cause of action may be permitted, provided they do not substantially change the plaintiffs’ claim.”
Section 317 of the statutes, supra, was clearly designed to aid in the furtherance of justice. Our court has universally held that under said section the trial court is vested with a wide discretion in permitting amendments in furtherance of justice, but no decision of this court has been called to our attention, and we have been unable to find any which tends to sustain the trial court in rejecting an amendment which would evidently aid in the furtherance of justice. The discretion allowed by the above section is to enable the court to ascertain and administer justice. It was never intended that justice should be or might be defeated by rejecting an amendment which, on its face, shows that justice would have been aided by permitting such amendment. Shade v. Miller, 131 Okl. 23, 267 P. 626; See, also, Rogers v. Jones, 194 *428Okl. 50, 147 P.2d 164; Okmulgee Supply Corporation v. Oil Well Supply Co., 167 Okl. 505, 30 P.2d 903; Hunt v. Tulsa Terrazzo & Mosaic Co., 157 Okl. 174, 11 P.2d 521, and Detwiler v. Duncan, 199 Okl. 189, 185 P.2d 200.
We are of the opinion that in furtherance of justice, the plaintiff should lie entitled to proceed in the prosecution of her case on a theory consistent with the facts proven and evidence admitted, and on the full issue as to whether Maben at and prior to his death was entitled to a 15%. interest in the sum involved.
Here there is evidence tending to show that the estate of Norvell is obligated to the estate of Maben, therefore a court of equity should not invalidate such obligation by restricting plaintiff to the authenticity of the written assignment, and disregarding all other pertinent evidence.
In furtherance of justice the plaintiff’s request to file amended petition should have been granted, and the trial court committed error in denying said request.
Indeed, without additional pleadings, the trial court might have accorded plaintiff’s estate a more extensive hearing, and a more unrestricted determination of the rights involved. In Lackey v. Quigley, 181 Okl. 492, 74 P.2d 927, this Court followed the stated rule that:
“Equity, when once attached in a proper proceeding, will administer complete relief on all issues properly raised by the evidence regardless of whether they were specifically raised by the pleadings.”
And in the body of the opinion it was said:
“ * * * It is a fundamental rule that equity, having once attached in a proper proceeding, will administer complete relief on all questions raised by the evidence, regardless of whether or not such questions or issues are specifically raised by the pleadings, as equity will not permit a mere form to conceal the real position and substantial rights of the parties. Lewis v. Schafer, 163 Okl. 94, 20 P.2d 1048. In the light of the record facts in the instant case it does not appear that the trial court was without power or jurisdiction to render a money judgment against defendants.”
There are other assignments dealing with the weight of the evidence on various points, but we refain from discussing them since the case must be fully re-tried.
The judgment appealed from is reversed, and the cause remanded with directions to vacate the judgment, and to permit plaintiff to file an amended petition, and after both parties are granted their full rights to amend their pleadings, that the cause be re-tried on such revised pleadings.
WELCH, C. J., CORN, V. C. J., and JOHNSON, BLACKBIRD and CARLILE, JJ., concur. HALLEY, DAVISON, WILLIAMS and JACKSON, JJ., dissent.