reversed or affected by reason of such error or defect.'

We think the

case presented by this record clearly comes within the letter as well as within the spirit of the provisions of the sections of the Code above cited."

See Anderson v. First Nat. Bank, 5 N. D. 80, 64 N. W. 114, where this court said: "The plaintiff asked leave to amend his complaint to conform to such proof. Such an amendment is in furtherance of justice. To refuse to allow it is an abuse of discretion. Not a single reason can be adduced to support such denial. No possible prejudice could have resulted to defendant from the granting of it. Defendant could not have been surprised to its prejudice, as it did not then and does not now dispute the fact, the allegation of which plaintiff sought to incorporate in the pleading by the proposed amendment. In denying the application for leave to amend, the court debarred the plaintiff from recovering the amount due the plaintiff from defendant. To have granted the motion would have resulted in no prejudice or injustice to defendant. The denial of it resulted in great injustice to the plaintiff. We are not confronted with the question whether a party can by amendment change his cause of action from contract to tort, as the amendment proposed, while showing a conversion, would have left the complaint still standing as a complaint on contract. We do not think that the proposed amendment substantially changed the nature of the plaintiff's claim, within the meaning of 4938, Comp. Laws, permitting courts to allow an amendment on the trial, to make the pleading conform to the proof. [Citing] Smith v. Savin, 141 N. Y. 315, 36 N. E. 338; Culp v. Steere, 47 Kan. 746, 28 Pac. 987; Spice v. Steinruck, 14 Ohio St. 213; Esch Bros. v. Home Ins. Co. 78 Iowa, 334, 16 Am. St. Rep. 443, 43 N. W. 229." Upon rehearing, at page 89 of the said reports, the court goes further into the powers of the trial court to grant an amendment, and says: "We will assume in this discussion that defendant's counsel is correct in his assertion that the proposed amendment showed that it was this remedy to which the plaintiff desired to resort. The mere fact that by this amendment the plaintiff sought to change his action from one at law to one in equity is by no means decisive against the power of the court to make it. Unlike a motion to amend by transmuting an equity into a law case, the granting of it does not deprive the

defendant of the right to a jury trial. When the action is transformed into an equity action, defendant has no right to a jury trial. The power of the court to amend the complaint on the trial to conform to the proof is not so limited by the statute that it cannot be exercised where the amendment will change the action from law to equity. The language of the statute is that the amendment shall not 'substantially change the claim.' We do not think that the proposed amendment substantially changes the plaintiff's claim. The form of the action is altered. The recovery will be somewhat different. But both complaints rest ultimately upon the ownership by plaintiff of the notes in question. It is to be noticed that the statute declares

that, to cut off the power to amend to conform to the proof, it is not enough that the cause of action is different. The claim itself must be changed, and that, too, in a substantial way. If in substance the two claims the one set forth in the original and the one embraced in the amended complaint-are the same, the power to amend on the trial to conform to the proof exists."

In Bigelow v. Draper, 6 N. D. 152, 69 N. W. 570, it is said: "The first point urged by the defendants is that the court erred in permitting the plaintiff, after the verdict, to amend the summons, complaint, and all the proceedings by adding the name of the Northern Pacific Railroad Company as a party plaintiff. The action was originally instituted in the name of the receivers of the company, such receivers having been appointed by the proper United States circuit court in foreclosure proceedings. It is true that this amend

ment was not made until after verdict; but the corporation had practically been a party to the action before that time, and the amendment simply brought it formally upon the record in the case. No right of the defendants could possibly be prejudiced by such amendment. The defendants were fully heard on the two questions on which they were entitled to be heard, the question of necessity, and the question of damages. Our statute relating to amendments is very broad in its provisions. Rev. Code § 5297, Comp. Laws 1913, § 5853. If the amendment is in furtherance of justice, it may be made. To hold that the amendment we are discussing should not have been made would be to return to the highly technical and extremely rigid rules of the common law relating to procedure."

In Martin v. Luger Furniture Co. 8 N. D. 220, 77 N. W. 1003, it is said: “It is elementary that the granting or refusing to grant amendments to pleadings is a matter lying largely within the discretion of the trial court, but it is equally well settled that such discretion means a legal, and not an arbitrary, discretion. The general rule governing the allowance of amendments to pleadings has been well stated by Chief Justice Sawyer, in Kirstein v. Madden, 38 Cal. 162, in the following language: From oversight of counsel, committed under pressure of business, pleadings are often defective. In such cases, when an offer to amend is made, at such a stage in the proceedings that the other party will not lose an opportunity to fully present his whole case, amendments should be allowed with great liberality." In Hayden v. Hayden, 46 Cal. 334, the court say: 'Undoubtedly, courts should be liberal in allowing amendments, to the end that cases may be fully and fairly presented upon their merits, and that equal and exact justice may be done between the parties.' In the light of the well-established principles enunciated by these cases, it is difficult to understand upon what legal theory the application to amend the answer was denied. The argument of counsel is that a suitor cannot be permitted to assume positions in a law suit which are directly antagonistic to each other, and that to allow this to be done would, in effect, be to countenance bad faith in a suitor. This position is certainly plausible, and, abstractly considered, is unassailable; but it may, we think, in this case, be answered in part by the fact as disclosed by the answer-that defendants have not directly alleged that the memorandum embraces the arrangement made by the parties respecting the purchase of the furniture. This re

quest, as we have seen, clearly involved a radical change of front on the part of the defendants, but we are constrained to hold that this change does not necessarily involve bad faith on defendants' part."

See Finlayson v. Peterson, 11 N. D. 45, 89 N. W. 855, where the court says: "On September 28, 1897, an amended complaint was filed in the district court, which, in substance, embraced all the allegations of the first complaint, but omitted the allegation that the defendant unlawfully entered upon the land and ousted the plaintiff thereof. In the amended complaint the following facts not contained in the first complaint were, in substance, set out, viz.: That the supreme

court had decided that the attempted foreclosure was abortive. This new complaint further alleged that the defendant, since taking possession of the land, had leased the same to one Allison.

Counsel contended that

It was further averred that the rents, issues, and profits arising from the land had much more than met and discharged the mortgage debt and the taxes upon the land. In this complaint, the plaintiff asked for an accounting in equity. the original complaint stated a cause of action in ejectment, and that the amended complaint alleged a cause of action for an accounting in a court of equity; and counsel contend, under an established rule of practice existing in the Code states, as well as in the states having no Code of Civil Procedure, that this is not permissible. There is good authority for this proposition of law, and we shall, at least for the purposes of this case, assume its entire correctness as stated by counsel. We are therefore to consider whether the amended complaint is obnoxious under this rule of practice. We think it is not. It lies within the discretion of the district court, either before or after judgment, to allow an amendment of a pleading in furtherance of justice, if the proffered amendment does not 'change substantially the claim or defense.' Rev. Codes 1895, § 5297, Comp. Laws 1913, § 5853. The question is, therefore, whether the facts averred in the amended complaint do substantially change the plaintiff's claim or cause of action. as stated in her original complaint. As this court construes the two pleadings, the plaintiff's claim against the defendant, as presented in the two complaints, is substantially one and the same claim. It is certainly clear that a large and substantial part of the relief which a court of equity could lawfully grant the plaintiff under his first complaint could be granted with equal propriety upon the facts set out in the amended complaint. The facts pleaded in both complaints, if established, would entitle the plaintiff to relief in a court of equity as follows: First, to a decree quieting title in the plaintiff, and excluding the defendant from claiming title to the premises; second, to a decree canceling the foreclosure sale, and the certificate and deed issued pursuant to such sale; third, to a decree canceling the warranty deed from James Milne to the defendant; and, finally, to a judgment awarding the plaintiff the possession of the land. The facts pleaded in both complaints, without doubt, invoke the powers of a court of equity; and, being in a court of

equity, that court would retain jurisdiction of the case for all purposes. But the two complaints differ in this: In the first it was alleged, in terms, that the defendant took possession of the premises unlawfully, and ousted the plaintiff therefrom; but this statement was qualified in the first complaint by an averment to the effect that the defendant claimed to be the owner of the land under the foreclosure sale, and the deeds of conveyance executed pursuant to such sale. We think that these two statements, when fairly construed, amount only to the allegation that the defendant entered upon the land in good faith as owner, but that he was mistaken as to his ownership, because the foreclosure under which he claimed title was illegal and abortive. It was not alleged in the first complaint that the defendant obtained possession by force, nor is it claimed in any of the plaintiff's pleadings that defendant obtained possession otherwise than peaceably. In the second complaint, the allegation that the defendant entered unlawfully and ousted the plaintiff is omitted, and in lieu thereof the plaintiff alleges only that the defendant was in possession of the premises; and by this complaint the defendant did not attempt to characterize the defendant's possession, or attempt to allege, in terms, whether the same was or was not lawful or wrongful; but, on the other hand, after stating the facts, the plaintiff prayed for an accounting, and for general relief in equity. Our conclusion is, therefore, that the trial court properly denied the defendant's motion to strike out the amended complaint."

See also Satterlund v. Beal, 12 N. D. 122, 95 N. W. 518; McLain v. Nurnberg, 16 N. D. 144, 112 N. W. 243; Webb v. Wegley, 19 N. D. 606, 125 N. W. 562, wherein it is said: "Our statute permitting amendments of pleadings is very liberal in favor of such amendments. If an amendment is in furtherance of justice, it may be allowed. Trial courts are vested with a broad judicial discretion regarding the subject of the allowance of amendments, and it is firmly established that an appellate court will not interfere with the action of the trial court, except in cases of a clear abuse of discretion. From the record in the case at bar we are not prepared to say that the trial court abused its discretion in permitting the amendment complained of, although no showing of cause therefor was made. The original answer, while inartistically framed, clearly shows on its