The only error urged in the brief of the plaintiff in error is the action of the court in refusing to strike the amended petition from the files. Rev. Laws 1910, sec. 4790, provides for amendments in almost every case, provided the amendment does not change substantially the claim or defense, and the question therefore is: Does the amended petition substantially change the claim set out in the original petition? The claim set out in the two petitions is for the same thing; that is, for the $5,000 paid to the plaintiff in error by the railway company,
which both petitions allege belong to the city, and the refusal of the plaintiff in error to pay it to the city is the basis of the claim in both petitions. In Z. J. Fort Produce Co. v.Southwestern Grain Produce Co., 26 Okla. 13" court="Okla." date_filed="1910-03-08" href="https://app.midpage.ai/document/z-j-fort-produce-co-v-southwestern-grain--produce-co-3807451?utm_source=webapp" opinion_id="3807451">26 Okla. 13, 108 P. 386" court="Okla." date_filed="1910-03-08" href="https://app.midpage.ai/document/z-j-fort-produce-co-v-southwestern-grain--produce-co-3807451?utm_source=webapp" opinion_id="3807451">108 P. 386, the original petition alleged that the defendant was indebted to the plaintiff in the sum of $180 for damages to a car of potatoes sold to the plaintiff by defendant, on a guaranty that the potatoes would be good and merchantable, and alleged that the potatoes were rotten and unmerchantable. The plaintiff was allowed to file an amended petition alleging that the defendant fraudulently, and for the purpose of defrauding and cheating the plaintiff, had loaded the car in which the potatoes were transported so as to prevent the plaintiff from ascertaining their worthless condition by placing sacks of good potatoes where they could be inspected, but loading the rotten and bad ones at the bottom of the car, where their condition could not be ascertained until the car was unloaded. A motion was filed in that case to strike the amended petition from the files for the same reason as in the case at bar, but it was overruled by the trial court, and this court sustained the judgment, on the authority of Culp v. Steere, 47 Kan. 746" court="Kan." date_filed="1892-01-15" href="https://app.midpage.ai/document/culp-v-steere-7888731?utm_source=webapp" opinion_id="7888731">47 Kan. 746, 28 P. 987. The court says:
"The only distinction between the facts in that case (Culp v. Steere) and the facts in the case at bar is that in the original petition in that case the action was founded upon the fraud of the defendant, and the amended petition was made to include a breach of the contract; whereas in the case at bar the original petition seeks to recover upon a breach of the contract by defendant, and it was amended so as to embrace his fraudulent acts in the same transaction as the basis of the action."
In Snider v. Windsor, 77 Kan. 67" court="Kan." date_filed="1908-01-11" href="https://app.midpage.ai/document/snider-v-windsor-7897610?utm_source=webapp" opinion_id="7897610">77 Kan. 67, 93 P. 600" court="Kan." date_filed="1908-01-11" href="https://app.midpage.ai/document/snider-v-windsor-7897610?utm_source=webapp" opinion_id="7897610">93 P. 600, cited with approval by the court in the Fort Produce Company Case, supra,
the original petition set up a cause of action for foreclosing a mortgage, and the trial court permitted an amendment converting the action into one of replevin to replevy the property covered by the mortgage, and the action of the trial court was held not to be error. See, also, Lookabaugh v.Bowmaker, 21 Okla. 489" court="Okla." date_filed="1908-06-24" href="https://app.midpage.ai/document/lookabaugh-v-bowmaker-3801186?utm_source=webapp" opinion_id="3801186">21 Okla. 489, 96 P. 651" court="Okla." date_filed="1908-06-24" href="https://app.midpage.ai/document/lookabaugh-v-bowmaker-3801186?utm_source=webapp" opinion_id="3801186">96 P. 651; Trower v. Roberts,30 Okla. 215" court="Okla." date_filed="1911-11-14" href="https://app.midpage.ai/document/trower-v-roberts-3814773?utm_source=webapp" opinion_id="3814773">30 Okla. 215, 120 P. 617" court="Okla." date_filed="1911-11-14" href="https://app.midpage.ai/document/trower-v-roberts-3814773?utm_source=webapp" opinion_id="3814773">120 P. 617; Gross Construction Co. v. Hales,37 Okla. 131" court="Okla." date_filed="1912-01-16" href="https://app.midpage.ai/document/gross-const-co-v-hales-3805894?utm_source=webapp" opinion_id="3805894">37 Okla. 131, 129 P. 28" court="Okla." date_filed="1912-01-16" href="https://app.midpage.ai/document/gross-const-co-v-hales-3805894?utm_source=webapp" opinion_id="3805894">129 P. 28; Penn v. Penn, 37 Okla. 650" court="Okla." date_filed="1913-06-19" href="https://app.midpage.ai/document/penn-v-penn-3798399?utm_source=webapp" opinion_id="3798399">37 Okla. 650,133 P. 207" court="Okla." date_filed="1913-06-19" href="https://app.midpage.ai/document/penn-v-penn-3798399?utm_source=webapp" opinion_id="3798399">133 P. 207.
In our opinion, the above decisions by the court warranted the action of the trial court.
We therefore recommend that the judgment be affirmed.
By the Court: It is so ordered.