tition, and, after an amendment to the answer and a reply, the cause proceeded to trial on the averments as stated in the original petition. At the close of the evidence the court, on motion of defendant, directed a verdict in its favor, and from a judgment thereon the plaintiff appealed.

Affirmed.

GRANGER, J.: 1. The condition of the record leads us

therein. 2. A plain and concise statement of facts constituting a cause of action, without unnecessary repetition. 3. A demand for the relief desired by the plaintiff; and, if a recovery of money be demanded, the amount shall be stated."

Missouri. Ann. St., 1906, § 592.

"The petition shall contain: 1. The title of the cause, specifying the term, the name of the court and the county in which the action is brought, and the names of the parties to the action, plaintiffs and defendants. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. 3. A demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain the amount demanded."

Montana. Rev. Codes, 1907, § 6532.

Identical with California provision, supra.

Nebraska. Comp. St., 1911, § 6666.

Identical with Kansas provision, with the exception that the clause "followed by the word 'petition'"' found in the first sub-division of Kansas statute is absent.

Nevada. Comp. Laws, 1900, § 3134.

Same as Colorado provision, supra, with exception that the phrase, “without unnecessary repetition" in (2) of the Colorado act is absent.

New Mexico. Comp. Laws, 1897, § 2685, sub-sec. 32.
Identical with California provision, supra.

New York. Chase's Code Civ. Proc., 1910, § 481.

"The complaint must contain: 1. The title of the action specifying the name of the court in which it is brought, if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting each cause of action without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled.''

North Carolina. Rev. of 1905, § 467.

"The complaint shall contain: 1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the trial is required to be had, and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation shall be distinctly numbered. 3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof must be stated."

North Dakota. Rev. Codes, 1905, § 6852.

Same as North Carolina, supra, with the following change in (1): instead of the words "the trial is required," there are the words "the plaintiff

to understand that the amendment to the petition, to which the demurrer was directed, was treated as a separate count; for, after it was held bad on demurrer, the case proceeded to trial as to the original petition. It will be seen that the amendment was filed some four years after the accident occurred, and actions of this character are barred by the statute of limitations in two years. The demurrer to the amendment raises the question whether it presents a new or separate cause of action, so as to

desires the trial''; and there is omitted the clause in (2), "and each material allegation shall be distinctly numbered."

Ohio. Gen Code, 1910, § 11305.

"The petition shall contain: 1. A statement of facts constituting a cause of action in ordinary and concise language. 2. A demand for the relief to which the plaintiff claims to be entitled, if the recovery of money is demanded, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be stated.''

Oklahoma. Comp. Laws, 1909, § 5627.

Identical with Kansas statute, supra.

Oregon. Lord's Laws, 1910, Code Civ. Pro., § 67.

"The complaint shall contain: 1. The title of the cause, specifying the name of the court, and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. 3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof shall be stated."'

South Carolina. Code of Laws, 1902, § 163.

"The complaint shall contain: 1. The title of the cause, specifying the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action -plaintiff and defendant. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. 3. A demand of the relief to which the plaintiff supposes himself entitled.''

South Dakota. Rev. Codes, Civ. Pro., 1903, § 119.

Same as South Carolina, with addition in (3) of clause "If the recovery of money be demanded, the amount thereof shall be stated."

Utah. Comp. Laws, 1907, § 2960.

Identical with California statute, supra.

Washington. Rem. & Ball. Codes, § 258.

Same as the South Dakota statute, supra.

Wisconsin. St., 1898, § 2646.

66

'The complaint shall contain: 1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial and the names of the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts constituting each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled; if the recovery of money be demanded, the amount thereof shall be stated."'

Wyoming. Comp. St., 1910, § 4379.

Substantially identical with the Kansas provision, supra, omitting the phrase "without unnecessary repetition" in (2).

come within the operation of the statute of limitations. A reference to the averments of the original petition will show that the negligence charged is in using different systems of drawbars or bumpers in the coupling of its trains on the day of the accident, instead of the ordinary, improved drawbar or bumper on its line of road. The acts of negligence charged in the amendment are entirely different, and show a right of recovery independent of, and without regard to, the acts charged as negligence in the original petition; the latter negligence being in the way and manner of using the drawbars,-in having them loose and out of repair, so that the injury arose from negligence in the way the drawbars were used, and not from the fact that different systems were used.

A "cause of action," as the term is used in pleading, is not the same under which a state of facts may be classed, but it consists of the facts giving rise to the action. An action is a proceeding in court. Code, § 3424. The cause of the action is the fact or the facts that "justify it or show the right to maintain it." Hence, when a material fact, necessary to a recovery, is omitted from a petition, we say it does not state a cause of action. In 5 Am. & Eng. Enc. Law, 776, it is said: "The cause of action is the entire state of facts that gives rise to an enforceable claim. The phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment."' This definition is taken, substantially, from the case of Read v. Brown, 22 Q. B. Div. 128. In that case it is said that a cause of action is "every fact which it would be necessary for plaintiff to prove, if traversed, in order to support his right to the judgment of the court." It is then said: "It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved." In Hutchinson v. Ainsworth, 73 Cal. 452, 15 Pac. 82, speaking of a cause of action with reference to the statute of limitations, it is said: "The facts upon which the plaintiff's right to sue is based, and upon which the defendant's duty has arisen, coupled with the facts which constitute the latter's wrong, make up the cause of action." The Bruil v. Association, 72 Wis. 430, 39 N. W. 529, and Rap. & L. Law Dict. 180. Care should be taken not to confuse the term "cause of action" as used abstractly and as used in pleading. In a general

sense, the term means "a claim which may be enforced." Bucklin v. Ford, 5 Barb. 393. "It is a right which a party has to institute and carry through an action." Myer v. Van Collem, 28 Barb. 230. "The right to prosecute an action with effect." Douglas v. Forrest, 4 Bing. 704. Looking to these cases, it will be seen that the term "cause of action" is used with no purpose to indicate a rule by which the cause of action may be distinguished from another, but merely with reference to the existence of a cause of action. We use expressions like these: "A cause of action for negligence;" "a cause of action for malicious prosecution;""a cause of action for desertion." They indicate the subject or subject-matter of the action, but are meaningless as showing a particular cause of action. In Rodgers v. Association, 17 S. C. 406, are the following query and answer: "What is a cause of action? We must keep in view the difference between the subject of the action and the cause of the action. The subject of the action was what was formerly understood as the subject-matter of the action. The cause of action is the right claimed or wrong suffered by the plaintiff, on the one hand, and the duty or delict of the defendant, on the other; and these appear by the facts of each separate case." We have emphasized the closing words to call especial attention to the rule when applied to a particular case. The application of the rule to this case leaves no doubt what the conclusion should be. The original petition stated a complete cause of action, and the amendment stated another. The two causes of action are so distinct and separate that either could be established without reference to a fact of negligence alleged in the other. Appellant says the cause of action is "the injury wrongfully inflicted by the defendant through the negligence of the defendant." That means a cause of action based on defendant's negligence, and, if that is the meaning of the term, for the purposes of pleading, then no amendment would be vulnerable to the objection that it stated a separate cause of action, so long as the facts pleaded constituted negligence. No authority that we have seen sustains such a rule.

The judgment is affirmed.

SECTION 2. CERTAINTY, DEFINITENESS AND PARTICULARITY.

(a) In Contract Cases.

WEEKS v. O'BRIEN.

Court of Appeals of New York. 1894.

141 New York, 199.

PER CURIAM. The complaint was dismissed, on the ground that it contained no averment that the architect unreasonably withheld his certificate of the completion of the building. The complaint was defective in this respect. By the true construction of the building contract, the procuring by the plaintiff of the certificate of the architect that the building had been completed was a condition precedent to his right to recover, under the contract, the last installment of $6,158, for which this action is brought. To meet this condition, and to show a right of action, it should have been averred in the complaint, either generally or specially, that the conditions precedent had been performed, or if the plaintiff relied upon a matter excusing him from procuring the certificate, the facts should have been stated. Thomas v. Fleury, 26 N. Y. 26; Bowery Nat. Bank v. Mayor, etc., of New York, 63 N. Y. 336; Doll v. Noble, 116 N. Y. 233; Oakley v. Morton, 11 N. Y. 25. The complaint neither averred that the certificate had been procured, nor that it was unreasonably withheld. A copy of the contract containing the provision as to the architect's certificate was annexed to the complaint. The action was upon the contract, and the complainant alleged performance by the plaintiff, and that the building had been substantially completed according to its terms. The contract made the architect's certificate the evidence of that fact, and the plaintiff could not recover upon an allegation of performance, upon proving that the building had in fact been completed, without procuring the architect's certificate, or showing that it had been unreasonably refused, or that the defendant had waived its production.

A defendant is authorized to raise the objection that the complaint does not state facts sufficient to constitute a cause of action on the trial, although the objection has not