The opinion of the court was delivered by
Kingman, C. J.:
The district court instructed the jury to find for the defendant Auld, on the ground that the action was barred by the statute of limitations. This instruction was manifestly correct unless the right of action was preserved by some of the saving clauses of the statute.
It is claimed by the plaintiff in error that two errors were made by the court in its rulings, either of which ought to reverse the judgment. First, the court erred in excluding evidence to show the commencement of a former action in due time, and a failure otherwise than upon its merits, and the commencement of the present action within a year from the failure upon the first. Second, in refusing, after the evidence was closed, to permit the plaintiff to amend his petition as offered, the' amendment being in substance that plaintiff did not discover the frauds, conspiracies and partnership charged in his petition until within two years next preceding the filing of his petition, and until within two years of the time of making the motion for leave to amend. The difficulty upon the first of these alleged errors does not so much grow out of the law, as to its application to the facts. The first petition with the amendments thereto is against David Auld alone, stating that one George W. Taylor had bought work oxen of the plaintiff of the value of $4,675, and gave his note therefor dated September 18th, 1865, and made payable in seventy-five days from date, and that afterward Auld bought the train of which these cattle were a part and undertook to deliver the freight in Colorado, a,nd agreed in writing to pay the debt of Taylor to plaintiff. It also contained a count for money had and received by Auld for the plaintiff. During the progress of the trial of the action on this petition, it was dismissed by plaintiff. This was a failure otherwise than upon the merits under the code, as this court decided in [182]*182McWhirt v. McKee, 6 Kas., 412. Immediately on the dismissal of the first action plaintiff commenced the present action, which seeks to hold- Auld responsible for the amount of the note of Taylor by alleging in substance that the purchase of the oxen from plaintiff was fraudulent; that Auld participated in it, and contrived it; that he was a secret partner of Taylor in the purchase, and had made large gains out of it. It would be impossible to state all that there-is in the petition without copying its eighteen pages. Still, if Auld is to be held responsible on the facts alleged in the petition, it must be on the grounds that he was a secret partner of Taylor in the purchase of the oxen, and their further use, and the disposition made of them for his benefit. Is-this the same cause of action? We think not. The first was a sufficient cause of-action; the fiicts necessary to support it are alleged, and Hiatt claims to recover because of the existence of those facts. The second claims to recover the same amount of money, but on the ground of the existence of a wholly different state of facts. The first action was on a contract of a special character between Auld and Taylor. The second on a contract between Auld and Taylor on the one part, and Hiatt on the other. The one is not only unlike the other, but inconsistent with it. The first alleges that Taylor bought the cattle and gave the note, Auld becoming subsequently liable. The second makes Auld liable as secret partner from the beginning. The first was a perfect complaint for one cause of action; the second was a cause of action not even suggested by the first. It is contended that the last petition might have been used by way of amendment to the first cause of action, had application been made before the first trial began. We do not think so. If a party has two notes on another, both due, he can bring his action on both notes in one petition; but if he brings his action upon one, and then continues the case until the statute has run upon the other, can he, by way of amendment, make the note on which the statute has run a part of his action, and thus by its relation back to the commencement of the action avoid the statute of limitations ? [183]*183Surely not. The supposed ease is not stronger than the one under consideration. The two causes of action did not arise from the same transaction. The first grew out of agreements made after Taylor bought the cattle. The second grew out of the purchase of the cattle. In the first, the plaintiff had but to prove the agreement and the consideration. In the second, no such' proof could have been admitted under the pleadings. The plaintiff, it is true, was trying in both cases ■to make Auld pay him for his cattle, but this settles nothing. If Auld had stolen the cattle from plaintiff, he could have sustained an action against him for their value. Had Auld bought them he could also have sustained an action against him for their value; and had he brought his action for the first, and after failure otherwise than upon the merits, had brought his action on-the second,1 it is possible this might have brought the last case within the statute, though that would certainly be a strained construction, but the right of action in either case might have grown out of the same transaction, and arisen from the same state of facts. But could a party thus keep alive one cause of action by instituting a different one, and when witnesses are gone, and facts are forgotten, dismiss one and then bring another ? Such at least is not the policy of the law. It is frequently said that our statute of limitations is so short that it should not be applied except in clear cases; but when the rapid movement of affairs, and the changing character of our population is considered, our statute of limitation, viewed as a statute of repose, is not relatively shorter than that of 21 James I., which was generally adopted by the American Colonies. We are aware that the statutes authorizing the bringing of a second suit upon a failure in the first, on any of the grounds enumerated in the statutes of the different states, have received a construction quite favorable to the plaintiff. The cases are referred to in the brief of plaintiff in error; but none of the cases go so far as to take a case out of the operation of the statute, where the cause of action was different. In Virginia it is held that a chancery suit for the same cause of action [184]*184would save the operation of that statute in a suit at common law: Gray v. Berryman, 4 Munford, 181. So in Alabama, 18 Ala., 307. In Mississippi it is held that this saving does not apply to a suit brought by the assignee, where the action on the note by the assignor had abated within a year. As very analagous to the principle in this case, though wholly unlike as to the facts and circumstances, reference is made to Dudley v. Price, 10 B. Monroe, 84, where the court decided that when during the pendency of a suit in chancery any new claim is set up by the plaintiff the defendant may have the benefit of the statute up to the time when the new claim is presented. In North Carolina the same decision has been made, where the new claim is founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Wedell’s Ch., 585. To hold that the first action operated to save the second, would be in our opinion to engraft another exception upon the statute not warranted by. its letter, nor coming within its policy. The two actions, to bring the second within the operation of the statute, need not be in the same form, and only additional facts -may be stated, or facts that have been stated may be omitted; but it must substantially be the same cause of action.
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The opinion of the court was delivered by
Kingman, C. J.:
The district court instructed the jury to find for the defendant Auld, on the ground that the action was barred by the statute of limitations. This instruction was manifestly correct unless the right of action was preserved by some of the saving clauses of the statute.
It is claimed by the plaintiff in error that two errors were made by the court in its rulings, either of which ought to reverse the judgment. First, the court erred in excluding evidence to show the commencement of a former action in due time, and a failure otherwise than upon its merits, and the commencement of the present action within a year from the failure upon the first. Second, in refusing, after the evidence was closed, to permit the plaintiff to amend his petition as offered, the' amendment being in substance that plaintiff did not discover the frauds, conspiracies and partnership charged in his petition until within two years next preceding the filing of his petition, and until within two years of the time of making the motion for leave to amend. The difficulty upon the first of these alleged errors does not so much grow out of the law, as to its application to the facts. The first petition with the amendments thereto is against David Auld alone, stating that one George W. Taylor had bought work oxen of the plaintiff of the value of $4,675, and gave his note therefor dated September 18th, 1865, and made payable in seventy-five days from date, and that afterward Auld bought the train of which these cattle were a part and undertook to deliver the freight in Colorado, a,nd agreed in writing to pay the debt of Taylor to plaintiff. It also contained a count for money had and received by Auld for the plaintiff. During the progress of the trial of the action on this petition, it was dismissed by plaintiff. This was a failure otherwise than upon the merits under the code, as this court decided in [182]*182McWhirt v. McKee, 6 Kas., 412. Immediately on the dismissal of the first action plaintiff commenced the present action, which seeks to hold- Auld responsible for the amount of the note of Taylor by alleging in substance that the purchase of the oxen from plaintiff was fraudulent; that Auld participated in it, and contrived it; that he was a secret partner of Taylor in the purchase, and had made large gains out of it. It would be impossible to state all that there-is in the petition without copying its eighteen pages. Still, if Auld is to be held responsible on the facts alleged in the petition, it must be on the grounds that he was a secret partner of Taylor in the purchase of the oxen, and their further use, and the disposition made of them for his benefit. Is-this the same cause of action? We think not. The first was a sufficient cause of-action; the fiicts necessary to support it are alleged, and Hiatt claims to recover because of the existence of those facts. The second claims to recover the same amount of money, but on the ground of the existence of a wholly different state of facts. The first action was on a contract of a special character between Auld and Taylor. The second on a contract between Auld and Taylor on the one part, and Hiatt on the other. The one is not only unlike the other, but inconsistent with it. The first alleges that Taylor bought the cattle and gave the note, Auld becoming subsequently liable. The second makes Auld liable as secret partner from the beginning. The first was a perfect complaint for one cause of action; the second was a cause of action not even suggested by the first. It is contended that the last petition might have been used by way of amendment to the first cause of action, had application been made before the first trial began. We do not think so. If a party has two notes on another, both due, he can bring his action on both notes in one petition; but if he brings his action upon one, and then continues the case until the statute has run upon the other, can he, by way of amendment, make the note on which the statute has run a part of his action, and thus by its relation back to the commencement of the action avoid the statute of limitations ? [183]*183Surely not. The supposed ease is not stronger than the one under consideration. The two causes of action did not arise from the same transaction. The first grew out of agreements made after Taylor bought the cattle. The second grew out of the purchase of the cattle. In the first, the plaintiff had but to prove the agreement and the consideration. In the second, no such' proof could have been admitted under the pleadings. The plaintiff, it is true, was trying in both cases ■to make Auld pay him for his cattle, but this settles nothing. If Auld had stolen the cattle from plaintiff, he could have sustained an action against him for their value. Had Auld bought them he could also have sustained an action against him for their value; and had he brought his action for the first, and after failure otherwise than upon the merits, had brought his action on-the second,1 it is possible this might have brought the last case within the statute, though that would certainly be a strained construction, but the right of action in either case might have grown out of the same transaction, and arisen from the same state of facts. But could a party thus keep alive one cause of action by instituting a different one, and when witnesses are gone, and facts are forgotten, dismiss one and then bring another ? Such at least is not the policy of the law. It is frequently said that our statute of limitations is so short that it should not be applied except in clear cases; but when the rapid movement of affairs, and the changing character of our population is considered, our statute of limitation, viewed as a statute of repose, is not relatively shorter than that of 21 James I., which was generally adopted by the American Colonies. We are aware that the statutes authorizing the bringing of a second suit upon a failure in the first, on any of the grounds enumerated in the statutes of the different states, have received a construction quite favorable to the plaintiff. The cases are referred to in the brief of plaintiff in error; but none of the cases go so far as to take a case out of the operation of the statute, where the cause of action was different. In Virginia it is held that a chancery suit for the same cause of action [184]*184would save the operation of that statute in a suit at common law: Gray v. Berryman, 4 Munford, 181. So in Alabama, 18 Ala., 307. In Mississippi it is held that this saving does not apply to a suit brought by the assignee, where the action on the note by the assignor had abated within a year. As very analagous to the principle in this case, though wholly unlike as to the facts and circumstances, reference is made to Dudley v. Price, 10 B. Monroe, 84, where the court decided that when during the pendency of a suit in chancery any new claim is set up by the plaintiff the defendant may have the benefit of the statute up to the time when the new claim is presented. In North Carolina the same decision has been made, where the new claim is founded upon papers previously made exhibits in the case. Christmas v. Mitchell, 3 Wedell’s Ch., 585. To hold that the first action operated to save the second, would be in our opinion to engraft another exception upon the statute not warranted by. its letter, nor coming within its policy. The two actions, to bring the second within the operation of the statute, need not be in the same form, and only additional facts -may be stated, or facts that have been stated may be omitted; but it must substantially be the same cause of action. Another point remains on this branch of the case: The first case was dismissed upon a stipulation signed by the attorneys of both parties that it should be “without prejudice of service or otherwise to the action commenced this day by Joel Hiatt v. David Auld and George W. Taylor.” It is claimed that this stipulation prevented the defendant from being allowed the benefit of his plea of the statute of limitations, on the ground that the two actions were not the same. If such was the intention of the parties they certainly failed to make it appear in the writing. It does not in terms, nor by any possible implication, prevent the defendant from setting up any defense he may have had to the action. It was simply what is known as a dismissal without prejudice, and the stipulation that no advantage should he taken that one action had been commenced while the other was on trial. The court properly refused to permit [185]*185one of the attorneys to testify as to 'what was the real intention of the parties in the written instrument. It is not susceptible of an explanation consistent with the claim of plaintiff in error.
The second point remains to be decided. The answer of the statute of limitations had long been filed. On that, as one of the issues, the case had been tried. After all the evidence was in the plaintiff offered to file an amended petition containing allegations that plaintiff had not discovered the fraud until within two years. Such an amendment at such a time comes too late. It raised another issue which would have to be tried, which might have led to a necessity for a retrial of the whole case. The facts should have been used as a reply to that part of the answer setting up the limitation. There was no abuse of discretion in refusing to allow the amendment to be made at that point of the trial. The omission to make it earlier does not appear to be the result of inadvertence. The answer had long been filed setting up the statute as a defense. Neither the affidavit nor the offered amendment showed when or how the fraud was discovered. See Stearns’ Adm’r v. Page, 7 How., 819. Upon the whole case we think the court correctly held that the action as to Auld was barred, and that the instruction to that effect was correct. This settles the whole case, and renders it ixnnecessary to examine the other rulings as to the admission or rejection of evidence, because with the exceptions noticed none of them would have affected the case on the question of limitation. The judgment is affirmed.
All the Justices concurring.