Pierce Butler

“ But the propriety of the filing of the amended declaration is not involved as permission was granted on the application of the petitioner. The substance of the change is to be regarded. In any view, a new cause of action was brought im more than six years after it accrued. The original declaration alleged an agreement between respondents and petitioner and set it out in haec verba. ”

“ That declaration did not attempt to state a cause of action under section 18 of the state Practice Act. Petitioner did not sue or claim as assignee. No reference was made to the contract between respondents and the partnership. The cause of action there stated never existed. The amended declaration states a cause of action for breach of the contract that was made by the partnership. It cannot be treated as curing a defective statement of a cause of action therefore attempted to be set up. Cf. Illinois Surety Co. ”

“ Peeler, 240 U.S. 214, 222, 36 S.C.t. 321, 60 L. Ed. 609. The change was not merely one of form; the fundamental substance of the claim was different. Cf. Friederichsen v. Renard, 247 U.S. 207, 213, 38 S.C.t. 450, 62 L. Ed. 1075. ”