#### Trinidad Asphalt Manufacturing Company, appellant, v. Buckstaff Brothers Manufacturing Company, appellee.

Filed June 23, 1914.

No. 17,811.

Pleading: Amendment: Cause oe Action. In an action on contract for the manufacture and sale of an article, an amended petition, whieh contains the same allegations of the making of the contract and performance by plaintiff, pleads the same cause of action, although, it alleges a different breach of the contract by defendant.

Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.

*Reversed.*

*Mockett & Peterson,*for appellant.

*C. Petrus Peterson, contra.*

Sedgwick, J.

The plaintiff began an action in the district court for Lancaster county to recover the contract price for the mam ufacture of roofing, and obtained a judgment, which was reversed by this court upon appeal. *Trinidad Asphalt.*
      *459
      *Mfg. Co. v. Buckstaff Bros. Mfg. Co.,*86 Neb. 623. It alleged tbe manufacture and delivery of tbe roofing according to tbe contract and asked for tbe contract price. Tbe record showed that defendant countermanded tbe order and refused to receive tbe goods, and tbe trial court bad instructed tbe jury that tbe contract price was tbe measure of damages, and it was held: “Where tbe seller in an executory contract for tbe sale of goods which were delivered to a carrier for tbe buyer receives notice that tbe buyer will not accept tbe goods, and, notwithstanding such notice, brings an action against tbe buyer for goods sold and delivered, it is error to instruct tbe jury that, if they find for tbe plaintiff, be is entitled to recover tbe purchase price of tbe goods.” Upon reversal tbe court gave leave to plaintiff to amend its petition “to correspond with tbe facts.” An amended petition was filed alleging that defendant refused to receive tbe roofing, and asking for damages. Tbe defendant demurred on the ground that the-petition stated a new cause of action and tbe statute of limitations bad run against it before filing tbe amended petition. Tbe demurrer was sustained and tbe action dismissed, and tbe plaintiff has appealed.

We think tbe court was in error in sustaining this demurrer. Tbe defendant says in tbe brief: “Tbe cases lay down various tests to determine whether or not tbe identity of a cause of action as originally pleaded is maintained in an amended petition. These tests are: (1) Does tbe same evidence support both petitions? (2) Is tbe measure of damages tbe same? (3) Is a judgment as to one a bar as to tbe other? (4) Is the allegation of each subject to tbe same defense?”

To recover on either petition, tbe plaintiff must prove tbe making of tbe contract, tbe full performance on bis part, and tbe refusal of defendant to perform. Precisely tbe same proof would be required as to tbe making of tbe contract and performance by plaintiff. It is true that tbe proof of defendant’s failure to perform would not be precisely tbe same. But some variance would result from any amendment of tbe petition. There could never be any *460object in making the amendment unless it would admit of additional or different proof. The action is still upon the contract, although the plaintiff alleges a different breach. Because the action after amendment would depend upon the same contract and plaintiff’s performance according to its terms, this court upon reversal allowed the amendment. There are many cases discussing the identity of a cause of action after amendment with the cause as stated in the original petition, gome of the older cases seem quite technical, but the best considered modern cases are in harmony with our view in this case. When the claim of plaintiff upon contract is not substantially changed, to allege a different breach of the contract on the part of defendant is not to allege a new cause of action. *Schuyler Nat. Bank v. Bollong,*28 Neb. 684.

The judgment of the district court is reversed and the cause remanded.

Reversed.

Lbtton and Rose, JJ., not sitting.