G-rangeb,, J.
The case presents the legal proposition whether of not the substituted petition so changes the claim for which the suit was brought that the *587defendant should not, as a matter of law, be required to answer it. With the condition of the record we are not to consider any discretionary authority of the trial court in refusing the petition, for it is apparent from the motion that it was stricken from the files because it so changed the action-as to be without any legal basis.In determining the question we are to be guided by Code, section 2689, as follows: “The court may, on motion of either party at any time, in furtherance of justice, and on such terms as may be proper, permit such party to amend any pleadings or proceedings by adding or striking out the name of a party or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved.”
The arguments in the case are directed to the point whether or not there has been a substantial change in the claim or cause of action because of the substituted petition. The appellee says in argument that the substituted petition presents “a new cause of action.” A reference to the section will show that the literal language does not limit the court in allowing-amendments to cases in which ‘ The amendment does not change substantially the claim,” but such limitation applies to cases of amending “by conforming the pleadings or proceedings to the facts proved. ’ ’ Without saying that amendments are allowable that would work an absolute change of the claim in any case, the language of the section is such as to induce a liberal construction that the spirit of the legislation may be preserved. Without dispute, it may be said that the substituted petition changes the contract in some particulars from that set out in the original petition, to the extent, at least, that one of its provisions is omitted and others are added. But, because of such *588facts, is the claim or cause of actipn changed? The appellee deals with the ease as though the contract was the cause of action, which perhaps in more than one sense is true; for it is the contract that gave rise to the action, and but for which the plaintiffs claim would not he, conceding, as we must, the truth of the averments of the petition. But the phrase “cause of action” is sometimes used in a more restricted sense than at others, depending upon the subject to which it is applied or the object which it is to subserve. “Cause of action” has been held to mean “every fact which is material to be proved to entitle the plaintiff to succeed;” “every fact which the defendant would have a right to traverse.” In such a sense it would embrace, not only the contract in the case, but the breach of it; for both must be proven in order to recover. Again, it has been held to mean, “not the whole cause of action, but that which, in popular meaning, — for many purposes, in legal meaning, — is the cause of action, viz., the act on the part of the defendant which gives the plaintiff his cause of complaint.” Jackson v. Spittall, L. R. 5 C. P. 542. It has been held to mean, in a case involving the purchase of land, “the non-payment of the purchase price.” Borst v. Corey, 15 N.Y. 505" court="NY" date_filed="1857-06-05" href="https://app.midpage.ai/document/borst-v--corey-3615420?utm_source=webapp" opinion_id="3615420">15 N. Y. 505. It is sometimes said to be the breach of duty. Howell v. Young, 5 Barn. & C. 259; Bank v. Ry. Co., 10 How. Pr. 1" court="N.Y. Sup. Ct." date_filed="1854-06-15" href="https://app.midpage.ai/document/president--directors-of-the-bank-of-commerce-v-rutland--washington-railroad-5468368?utm_source=webapp" opinion_id="5468368">10 How. Pr. 1.
To our minds, the substituted petition works no substantial change in the claim or 'cause of action in the case. The plaintiffs ask to recover the money expended by them, and the value of their time lost because of the defendant’s breach of the contract. It is this loss of money and time that induces or causes the action, and such is their “claim” in the case. By their amendent they have made some changes as to the facts on which they expect to recover, but not to the extent of making it another transaction. The gist of the transaction was in receiving the title to the lots *589under a promise to do certain acts in payment for them. This is adhered to in both petitions. The details of the transaction, by’ which the whole cause of action may be known and properly presented for trial, are matters that come within the spirit of the law permitting amendments in furtherance of' justice. That in so doing some facts are changed by way of averment, does nob change the claim or cause of action, if there remains the same substantial ground of complaint. The allegation in the first petition that by the contract the defendant was to build all its depots on the east side would go only to increase the damages, if a valid contract. To strike it out, by way of amendment, is but to change the averments on which the same recovery is sought. It is still a contract for the purchase of the lots; and the law as to amendments is designed to permit the parties, sooner or later, to plead the actual facts. We are cited to many Iowa cases, none of which are directly in point, but all tend to a liberal rule, and favor the spirit of our conclusion in this case. A syllabus in Pittsburgh Junction Ry. Co. v. McCutcheon, 7 Atl. Rep. (Pa. Sup.) 146, is as follows: Where the gist of the action remains the same, although the alleged incidents are different, the court has the right to permit the plaintiff to withdraw his original declaration and file an amended one.” The plaintiff — defendant in error on appeal— brought his suit for damages to his leasehold by the construction of the defendant’s railroad, alleging, in the first place, that the road was unlawfully constructed to his damage. His substituted declaration so changed the facts as to show that the road was legally constructed, and sought the damage under his constitutional right to compensation for property so injured. The case gives very strong support to our conclusion. This case is determinable largely upon the liberal provisions of our statute.
*590We think the trial court erred in sustaining the motion to strike the substituted petition, and its judgment is REVERSED.