My inability to agree with the conclusion announced in the majority opinion is not grounded so much upon the statement of the legal principles discussed, as upon their application to the facts of this case. The amended claim that was presented to the administratrix specified the names of the pictures for which payment had not been made, and on which the claim was based. All are based upon contract of August 14, 1929. The pictures specified, and the amount due for each, were as follows: Mysterious Dr. Fu Manchu, $100 and recording charge of $22.50; Illusion, $125.50 and recording charge of $22.50; The Greene Murder Case, $60 and recording charge of $15; Charming Sinners, $50 and recording charge $15; Ladies Choice, $15; Dangerous Females, $15; Faro Nell, $15; Chinatown My Chinatown, $7.50; for expressage of Love Doctor, $2.95; for advertising on Glorifying the American Girl, $2.85; for advertising on Brown Gravy, Weak but Willing, Marching to Georgia, and Red Headed Hussy, 68¢; expressage on The Virginian and Weak but Willing, $6.47; for advertising on Cocoanuts, $6.97, The Virginian, $1.74; Pointed Heels, $5.15; Saturday Night Kid, $7.07; making an alleged total of $396.41.
The pictures enumerated in the written contract sought to be substituted in lieu of the contract originally attached were also enumerated in the contract that was attached to the claim when presented. There is no effort being made to amend the claim in any respect, but only to substitute a correct copy of the contract for the erroneous copy presented to the administratrix *Page 292 with the claim. As above noted, the erroneous contract attached to the claim, as well as the corrected copy of the contract, both name the same pictures specified in the claim for which payment is sought. The erroneous contract named certain other pictures not embraced in the claim, and the corrected copy of the contract does likewise, and names some pictures not named in the erroneous contract, but none such are involved or embraced in the claim.
Also on the back of the corrected copy of the contract there is an arbitration clause not appearing in the erroneous copy presented with the claim. There are other minor discrepancies between the two contracts in respect to printed matter on the back of each, but all of the printed matter on both contracts is primarily for the benefit and protection of the claimant. The printed matter on the back of the contract does not appear to enter into the merits of the claim in question. The contract it is claimed, except for the payment of the pictures, has been fully executed.
With this statement of the facts as they appear, we then come to the law applicable thereto.
Section 9187, Revised Codes 1921, provides: "The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer, reply, or demurrer. The court may likewise, in its discretion, after notice to or in the presence of the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and upon like terms allow an answer to be made after the time limited by this code; and may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was *Page 293 taken." The word "proceeding" as used in other statutes embraces probate proceedings (State ex rel. Nissler v. Donlan,32 Mont. 256, 80 P. 244; State ex rel. Goodman v. DistrictCourt, 46 Mont. 492, 128 P. 913), and I think as used in section 9187 it embraces such proceedings as the presentation of claims against an estate. This court has held that section 9187 has application to probate proceedings. (State ex rel. Hahn v.District Court, 83 Mont. 400, 272 P. 525.)
"Statements of claims are generally subject to amendment, provided that substantial justice will be promoted thereby, that the cause of action embraced in the original statement is not changed, that new items are not added, and of course that the original statement contains allegations upon which an amendment may be predicated, such amendments being allowed either under the general statutes relating to amendments of pleadings or under special statutes applicable to claims of creditors in administration proceedings." (24 C.J., sec. 991, p. 354; and see 11 Cal. Jur. 710; 11 R.C.L. 198.)
Liberality should be exercised in allowing amendments to claims (White v. Deering, 38 Cal. App. 516, 179 P. 401) and the right of amendment is favored by the courts. (Wise v.Outtrim, 139 Iowa, 192, 130 Am. St. Rep. 301, 117 N.W. 264.) The rule is to allow amendment to pleadings, and the exception is to deny them. (Fowlis v. Heinecke, 87 Mont. 117,287 P. 169.) And since a claim against an estate need not be set out with all the details required of a complaint (Wunderlich v.Holt, 86 Mont. 260, 283 P. 423), greater liberality should be exercised in permitting amendments to a claim than to a complaint, providing of course, that the amendment is germane to the claim as presented, and does not change its identity. And where a claim was originally filed in time, an amendment may be allowed after the time for presenting claims has expired, particularly where, as here, it does not increase the amount of the claim, and does not substitute a different claim for the same amount. (24 C.J., sec. 992, p. 354.)
I do not interpret the opinion in the case of Davis v.Superior Court, 35 Cal. App. 473, 170 P. 437, 439, as the majority *Page 294 have. As I understand that case, there was no copy of the contract presented, either with the claim or separately, either attached thereto or otherwise. The court in that case said: "He prepared his claim in due form and verified it as required by law; he stated in his claim that a copy of the contract on which his claim rested was attached thereon `marked Exhibit A'; the attorneys who prepared the claim directed their clerk to attach a copy of the contract to the claim and mail the claim to the executrix; the clerk, believing that he had complied with these directions, mailed the claim to the executrix and the envelope, with its contents, was received; through the mistake and inadvertence of the clerk, he failed to attach the said copy; the executrix retained the claim in her hands several months without acting upon it, and, after the time for the presentation of claims had elapsed, she returned it to the attorneys disallowed, and then for the first time the petitioner was made aware of the mistake; he promptly sought relief by application to the court, but was denied it for the reasons shown." The court held that under a statute identical with our section 9187, the court may permit an amendment to a claim to be made by attaching a copy of the contract upon which the claim was based after the time had expired for presenting claims, and that the amendment takes effect as of the date the claim was presented to the administratrix. The court used this significant language, applicable here: "Here, however, the facts constituting the claim as presented are fully and completely shown on its face, and reference is made to the particular contract which is identified. The contract is but the evidence by which the claim is to be established. Attaching a copy to the claim would in no sense change the substance of the claim." While this court is not bound to follow the California holding in this respect, if not satisfied with its conclusion, I think it correctly applies the statute and should be followed. Other courts have reached the same conclusion.
In Trustees, etc., v. Paxton, 180 Ill. App. 658, a claim was filed by the Presbyterian Church of Kansas against the estate *Page 295 of Paxton, within the time allowed by law. After the time for presenting claims had expired, by leave of court the claim was amended so that the name of claimant was changed to "the Trustees of the Old School Presbyterian Church." It was held that the court properly allowed the amendment to the claim, saying: "It was not the commencement of a new action or the filing of a new claim, the cause of action remained the same and the only difference that the amendment could have made was to show the proper name of the party proper to maintain the action."
In Carter v. Pierce, 114 Ill. App. 589, the original claim was based upon a judgment, and an amended claim based upon a check and money loaned was allowed to be filed after the time for presenting claims had expired. This was held proper, where it was shown by extraneous evidence that the original and amended claims pertained to the same transaction. The court said: "It is not contemplated by the statute that claims against estates should be prepared and presented by those skilled in pleading and practice of law, or with strict accuracy as to form. Such requirement would, in many cases, work gross injustice. The trial court properly disregarded the technical rules governing suits at law and considered the substantial rights of the parties only, and we are constrained to hold that its action was proper."
In the case of Bates v. Howell's Estate, 179 Iowa, 969,162 N.W. 231, 233, the original claim was based upon an express contract. The amended claim filed after the time for presenting claims had expired was on a quantum meruit. The court held that, since both covered the same services and the same period of time, the claimant was entitled to amend the claim and have the benefit of the original filing, so far as the statute of nonclaim was concerned. The court there said: "In the instant case the amended and substituted claim eliminates a number of matters set up in the original claim. But, as said, plaintiff is asking a recovery for the same services. The amendment clarifies the original pleading, and substantially the only difference between the two is that the original alleges an *Page 296 express contract to pay, while the second asks to recover for the value of the services performed by plaintiff for deceased, with her knowledge and consent. It might be said that the amendment is, in effect, a second count. We think the so-called amended and substituted claim is germane to the original claim, and that the court properly overruled the defendant's objection to the filing of the same."
In speaking of this question, the court, in Smith v. Funk,141 Okla. 188, 284 P. 638, 642, said: "The claim as presented to the executrix referred specifically to the original divorce action, and set forth a copy of the journal entry of judgment in that case, and made claim for a certain amount under such judgment for the use and benefit of each named child. The trial court permitted the claimant to amend or supplement the claim by adding thereto in part as follows: `* * * And which certain amount is also owing to the said Lottie E. Funk by virtue of the terms of a written contract entered into between Lottie E. Smith, now Lottie E. Funk and William M. Smith, prior to the decree and judgment above mentioned. * * *' It is contended by plaintiff in error that the claim as amended was not verified or presented, and that the amendment changed the cause of action by changing the claim upon which it was based. In our view of the matter the amendment did not change the claim or cause of action. The claim as originally presented was based on the decree or order in the divorce action, which decree confirmed and embodied within it the contract referred to in the so-called amendment. The claim as originally presented was sufficient, and the amendment did not materially add anything thereto." To the same effect areHankins v. Young, 174 Iowa, 383, 156 N.W. 380, and Wise v.Outtrim, supra.
It is my opinion that under section 9187, the court may permit the filing of a correct copy of the contract on which the claim is founded, after the time allowed by law for the presentation of claims, the claim itself having been presented within time, where, as here, it does not in any manner change the nature of the claim. I agree with what is said in the *Page 297 majority opinion with respect to the notice to creditors. Whether petitioner made out a sufficient showing to warrant relief under section 9187, not being discussed in the majority opinion, requires no consideration here.