Jackson, C.
On March 6, 1903, the defendant in error, hereafter styled the plaintiff, instituted an action before a justice of the peace in Lancaster county against the plaintiffs in error, hereafter styled the defendants. The bill of particulars upon which the cause was tried in justice’s court, omitting the caption, is as follows:
“Plaintiff, complaining of the defendants, avers that said defendants entered into a contract in writing with plaintiff on or about the year of 1897, which said contract was made by Jacob North,- Sr., who was then the president and manager of Jacob North & Company of Lincoln, Nebraska, and who also represented the defendant, Clarence S. Paine, by the terms of which said contract the defendant..! agreed to pay to the plaintiff, as a commission for taking orders for the history of Nebraska, $7.50 for each order procured, and further agreed to pay to the plaintiff 10 per cent, commission on the collection of money due for histories sold, and also agreed to pay to the plaintiff $40 a month for services rendered in gathering data for said history; and, in pursuance of said contract, did sell and procure 15 orders for said histories, and there is due to the plaintiff from the defendants therefor the sum of $150, no part of which has been paid; that the names of the parties of whom said orders were procured are as follows: Mr. L. W. Colby, Judge Hazlett, Mr. Hoyte, Dr. Sprague, Mrs. Minnick, Mr. A. J. Sawyer, Prof. Caldwell, state library of Nebraska, school library and Allen Fisher. The names of the other parties to whom sales were made, this plaintiff has not a list but turned the same in, and the same are upon the records of the defendants, who have refused to permit this plaintiff to see the same, and plaintiff cannot at this [375]*375time give a full statement of the names of all the parties, nor can the plaintiff more definitely describe the names of those herein given, for the reason that she has not the full names of the parties. The contract, which was in writing, providing the compensation of this plaintiff for saixl work, this plaintiff cannot set out in full at this time, for the reason that the same is not in her possession, but is in the possession of the defendant. At a time when this defendant turned in her records in pursuance of the request of the defendants pertaining to said business, said contract was delivered, through inadvertence, with the other papers, and since said time has been in possession of the defendants and defendants have refused to return the same to plaintiff. Said contract, in the employment of this plaintiff, was repeatedly referred to and ratified by the defendants, after the same was made. On the 12th day of November, 1901, the defendant, Clarence S Paine, wrote this plaintiff Avitli reference to said contract as folloAVS: ‘If you are still after those people (referring to the collections placed in the hands of this plaintiff) and pushing matters, A\rell and good, but, if not, I should like to have you return histories and supplies, etc., as I can use them. In any event I should like to hear from you.’ This Avas Avritten for the defendants, and all of them, in recognition of the contract of this jffaintiff, hereinbefore referred to. Again, on the 9th day of December, 1901, the defendant, Paine, for all of the defendants Avrote this plaintiff as follows: ‘Please return at once the History of Nebraska, contracts and supplies Avliich you have. It seems to me that I have Avaited as long as I should be required to for you to sIioav some interest in the business which you have in hand. Don’t you think so?’ Parties from Avliom collections Avere made, so far as this plaintiff can give a list of same, are as follows: Mr. Abbott, Mr. Stearns, Mr. Tyrrell, Mr. Stevens, Mr. Raymond, Mr. A. J. SaAvyer, Mr. McRrien, Mr. Dodson, Governor Thayer and Chancellor Andrews, and numerous others Avhom this plaintiff cannot name for the reason that the list and [376]*376records of the same are in the hands of the plaintiff. The dates of the collections this plaintiff cannot give with any degree of accuracy, for the reason that she has not the data Avhich she turned in in her report to the defendants, and the defendants have full and complete records of the collections made, and the time of making the same, and the parties from Avhom they Avere made, and AviJl not give this plaintiff access to their records or permit her to obtain said data until so ordered by the court. The months for which plaintiff Avas employed by the defendants, for which she claims the sum of $65, were as folloAVs: From about September 12 to December 20, 1901. Plaintiff further says, in pursuance of said contract she collected for said defendants the sum of $300, and ill ere is due to this plaintiff from said defendants for said services so performed the sum of $30, no part of which has been paid. Plaintiff further avers that she Avorked for said defendants for the period of three months by the terms of said contract, and there is due to this plaintiff from said defendants therefor the sum of $65, no part of which has been paid. Plaintiff avers that, by reason of the premises, there is due to this plaintiff from the said defendants the sum of $200, no part of which has been paid. Wherefore the plaintiff prays judgment against the defendants for the sum of $200 and costs of suit.”
From a judgment favorable to the plaintiff, the defendants appealed to the dstrict court. In the district court the plaintiff filed a petition substantially the same as the bill of particulars. The issues were joined in the district court upon this petition by proper pleadings and the case proceeded to trial. The trial of the case in the district court occupied the attention of the court for several days. During the progress of the trial, and after the taking of testimony had commenced, plaintiff asked and obtained leave of court, over the objection of the defendants, to amend her petition, the record being this: “Plaintiff requests the court for permission to amend the [377]*377petition by inserting after the words ‘was made/ on the second page of the petition, the words ‘adopted and accepted the terms thereof/ ” Objections were made on behalf of both defendants, bnt the amendment was allowed, and exceptions taken, and the trial proceeded. On the third day of the trial, the plaintiff, over the objections of the defendants, obtained leave of court to file, and did file, an amended petition which, omitting the caption, is as follows:
“Plaintiff, complaining of the defendants, avers that on or about the month of May, 1898, the firm known as Jacob North & Company, a copartnership, of Lincoln, Nebraska, then composed of Jacob North, Sr., and Jacob H. North, entered into a written contract with this plaintiff, by the terms of which they agreed to pay to the plaintiff as a commission for-taking orders for a work then in contemplation of publication by the said defendants, known as the History of Nebraska, agreeing with the plaintiff to pay her a commission of $7.50 for each order procured, and further agreeing to pay to the plaintiff 10 per cent, commission on all collections of money made by .her upon orders given for said history; that, in pursuance of said ' contract, the plaintiff entered upon her duties -under said contract and solicited and procured orders for the defendants; that thereafter, and about the 9th day of September, 1899, Jacob North, Sr., a member of said copartnership, died in Lancaster county, Nebraska; that after the death of said Jacob North, Sr., the business of said co-partnership was still continued in the name of Jacob North & Company. That Hannah North, devisee in his will, was substituted in said partnership for the said Jacob North, Sr., and said new partnership still continued said enterprise of gathering and procuring data for said history and orders for the same; that soon after the death of said Jacob North, Sr., this plaintiff called upon said new copartnership of Jacob North & Company, and said new copartnership of Jacob North & Company, the defendants herein, with a full knowledge of the terms and conditions [378]*378of the contract executed by the old firm of Jacob North & Company to this plaintiff, accepted and adopted the terms of said contract, and promised and agreed to and with this plaintiff, in consideration of this plaintiff continuing in said work with said defendants, the new co-partnership of Jacob North & Company would pay to this plaintiff all moneys earned by her in the performance of said work, and for future services which she might render would pay to her $7.50 for each order procured for said history, or each history for which she obtained an order, and would pay to her $7.50 for each order she had procured and 10 per cent, commission on all moneys collected by her on orders given for said history, which was accepted by the plaintiff, and by reason thereof, and relying thereon, she continued in said services in the performance of said work; that, at the time of commencing said work, Jacob North & Company stated to this plaintiff that said history would be completed and ready for delivery early in the year of 1899; that, again, shortly after the death of said Jacob North, the defendants stated to this plaintiff that said history would be completed and ready for delivery in a short time, and directed the plaintiff to so represent to the subscribers to said history; that, again, on the 12th day of September, 1901, the defendant, Clarence S. Paine, who was then a joint owner with the. defendants, Jacob North & Company, in said enterprise of publishing said history, orally promised and agreed for and on behalf of the defendants that defendants would pay to this plaintiff the sum of $7.50 for each order procured by her for said history, and would further pay to this plaintiff the sum of 10 per cent, on all moneys collected by her on orders given for said history, and would pay this plaintiff the sum of $40 a month for gathering data, photographs, plates and information pertaining to said history; that, in pursuance of said contracts, this plaintiff did procure for the defendants and delivered to the defendants 19 written orders for said history, including the orders delivered to the old firm of Jacob North & Com[379]*379pany, and accepted and received by the defendants; that there is due to this plaintiff from the defendants for said services so performed in the procurement of said orders for said history as aforesaid the sum of $142.50; that there has been paid thereon a total sum of $52.50, leaving a remainder due this plaintiff thereon of $90, no part of which has been paid; that said payments consisted of $37.50 commissions collected direct from the parties making payments upon said orders, and $15 paid thereon by the defendant, Clarence S. Paine; that, in pursuance of said contracts, this plaintiff collected for the defendants upon said orders for said history the sum of $105; that there is due to this plaintiff from the defendants for said collections so made the sum of $10.50, no part of which has been paid; that, in pursuance of said later oral contract made with the defendants through the defendant, Clarence S. Paine, on or about the 12th day of September, 1901, this plaintiff procured for the defendants two orders for said history, and there is due to plaintiff from the defendants by reason thereof the sum of $15, no part of which has been paid. This plaintiff further avers that, under the terms of said contract, she worked for the defendants from the 12th day of September, 1901, to the 2d day of December, 1901, at the agreed price of $40 a month, making a total time of three months and eight days, and there is due to this plaintiff from the defendants by reason of said services so rendered the sum of $140, no part of which has been paid. That there is now due to the plaintiff from the defendants, by reason of the premises, a total sum of $200, no part of which has been paid. Wherefore plaintiff prays judgment against the defendants for the sum of $200 and costs of suit.”
To the order allowing the amended petition to be filed, the defendants severally excepted, and afterwards moved to strike the amended petition from the files. The motion was denied and the trial again proceeded, resulting in a verdict and judgment for the plaintiff. Prom the judgment so obtained, the defendants prosecute error to this court.
[380]*380Among other errors assigned is the order of the district court permitting the filing of the amended petition and. the refusal of the trial court to strike the amended petition from the files after it had been filed, it being argued that the amended petition presented another and different issue from the one presented and tried in justice’s court. The evidence discloses that in the year 1897 Jacob North, Sr., and Jacob H. North were partners, doing business as Jacob North & Company. These were the only members of the partnership, and that that partnership continued until the 11th day of September, 1899, when Jacob North, Sr., one of the partners, died. Some weeks afterwards Hannah North and Jacob H. North, the surviving partner in the old firm of Jacob North & Company, associated themselves together as partners and succeeded to the business of the old partnership, which they continued under the partnership name of Jacob North & Company, one of the defendants in this action. The evidence also discloses that a considerable portion of the services performed by the plaintiff, and for which she claims the right to recover in this action, were performed by her during the existence of the- partnership which was extinguished by the death of Jacob North, Sr., and by the amended petition it is sought to charge the present partnership (one of the defendants) with services ■which the plaintiff claims to have performed for the defunct partnership, and the amount of the judgment obtained by plaintiff in the district court necessarily includes the plaintiff’s claim for services performed during the lifetime of the former partnership, so that the question fairly arises as to whether in justice’s court the plaintiff’s bill of particulars presented a similar demand. In our judgment it did not. The bill of particulars recites a written contract with the defendants in the year 1897, by the terms of which the defendants agreed to pay the plaintiff certain commissions for taking orders for a History of Nebraska, and for the collection of moneys, and. a salary per month for services rendered in gathering data for [381]*381the history, and upon that alleged contract the plaintiff! sought to and did recover in justice’s court. It would be trifling with language to say that the same cause of action was set out in the amended petition, upon which the plaintiff was permitted to recover in the district court.
The district court erred in permitting the amended petition to be filed, and we recommend that the judgment of the district court be reversed and the cause remanded for further proceedings in conformity with this opinion.
Düffie, C., concurs. Albert, C., not sitting.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings in conformity with this opinion.
Reversed. '
Sedgwick, J., dissents.
The following opinion on rehearing was filed December 21, 1906. Judgment of reversal vacated and judgment of district court affirmed:
1. Appeal: Issues. A case must be tried in tbe district court upon appeal upon tbe issues tried in tbe lower court. Tbis does not mean that no issuable fact can be pleaded in a petition in tbe district court that was not alleged in tbe bill of particulars in tbe lower court. If tbe identity of tbe cause of action is preserved in tbe petition it is sufficient.
2. "Witnesses: Competency. A party is not prohibited from testifying by section 329 of tbe code, unless bis adversary represents a deceased person in tbe issue that is being tried.
Sedgwick, C. J.
The bill of particulars in the justice’s court and the amended petition in the district court are set out in full in the former opinion, ante, p. 373. The judgment of the district court was reversed because it was thought that the amended petition contained allegations which amounted to a change of the issues from those presented in the jus[382]*382tice’s court. After the plaintiff had made a written contract with the copartnership that was then doing business under the name of Jacob North & Company, and was composed of Jacob North, Sr., and Jacob H. North, one of the members of the copartnership died, and a feAV weeks later his widoAV, who was legatee under his will, was substituted in his place in the copartnership, and the business continued under the same name. The action was brought against Jacob North & Company, but the firm at that time was composed of Jacob H. North, one of the original copartners, and Hannah North, who had been substituted, as before stated, in the copartnership for the deceased member thereof. Nothing was said in the bill of particulars as to the individual membership of the firm, except that it Avas alleged that Jacob North, Sr., was, at the time the contract was made, president and manager of the copartnership and acted for the copartnership in making the contract. The amendment which constituted the supposed change of issue consisted of the allegation: “That after the death of said Jacob North, Sr., the business of said copartnership Avas still continued in the name of Jacob North & Company. That Hannah North, devisee in his will, was substituted in said partnership for the said Jacob North, Sr., and said neAV partnership still continued said enterprise of gathering and procuring data for said history and orders for the same; that soon after the death of said Jacob’ North, Sr., this plaintiff called upon said new copartnership of Jacob North & Company and said new copartnership of Jacob North & Company, the defendants herein, Avith a full knoAvledge of the terms and conditions of the contract executed by the old firm of Jacob North & Company to this plaintiff, accepted and adopted the terms of said contract, and promised and agreed to and with this plaintiff, in consideration of this plaintiff continuing in said Avork Avith said defendants, the new copartnership of Jacob North & Company would pay to this plaintiff all moneys earned by her in the performance of said work, and for future serv[383]*383icos which she might render Avould pay to her $7.50 for each order procured for said history, or each history for Avhich she obtained an order, and Avould pay to her $7.50 for each order she had procured and 10 per cent, commission on all moneys collected by her on orders given for said history, Avhich Avas accepted by 'the plaintiff, and by reason thereof, and relying thereon, she continued in said services in the performance of said work.”
Did this constitute such a change of plaintiff’s cause of action as to require her petition to be stricken from the files for that reason? The plaintiff sued to recover for services rendered to the copartnership of Jacob North & Company. After the death of Jacob North, Sr., the business of the copartnership continued to be conducted by the surviving partner in the same name for three or four Aveeks, Avhereupon the Avidow and legatee of the deceased partner became a member of the firm in place of the deceased and, without any change in the name of the firm, the same business Avas carried on in the same way. It would appear from the record that the ucav partner, by the terms of the Avill, succeeded to all of the rights of the deceased partner in the business. Tin; contract that the plaintiff had entered into Avith the firm before this change in its membership Avas being carried out by the parties at the time of the death of the senior North, and was continued after Mrs. North became a member of the partnership in the room of her deceased husband. The action was brought against the coi>artnership. in the name which it has ahvays borne and-has continued against that defendant in that name. The plaintiff did not rely upon these facts to fasten a liability upon the firm, as at present organized, for contracts entered into and services rendered before the change in the personnel of the membership of the firm. It seems to have been supposed by both parties that the present firm would not be liable for such contracts and services, unless the new member had expressly agreed that it should be so liable, or some member of the firm had made such agreement after the new member entered [384]*384the firm. The allegations were that the contracts that had' been entered into by the firm before the change in the membership were ratified and agreed to after the change in the membership. Upon this point the allegations were specific and alleged the making of a contract in detail similar to the original contract. It was upon this issue that the case was tried. The cause of action in the justice's court was services rendered by the plaintiff for the firm of Jacob North & Company, and manifestly the cause of action was the same in the amended petition in the district court. In a leading case in this court upon this subject it was said:
“If new issues can be raised in- the appellate court it is not a trial of the same cause — not in fact an appeal.” O’Leary v. Iskey, 12 Neb. 137.
This is the true reason of the rule, and, accordingly, it was said in Citizens State Bank v. Pence, 59 Neb. 579:
“The facts were pleaded with more particularity in the district court than in the court from which the appeal was prosecuted; nevertheless, the identity of the cause of action was fully preserved. The plaintiffs were not required to state their cause of action in the district court in the same language as it was set forth in the county court.”
To plead an issuable fact in the appellate court that was not pleaded in the lower court is not necessarily pleading a new cause of action, and a change in the. issue presented in the petition is not subject to this objection, unless it is such a change as to amount to a new cause of action. We think therefore the court did right in overruling the motion to strike the amended petition from the files.
2. Upon the trial in the district court the plaintiff was asked to testify as to the making of the original contract between herself and the defendant Jacob North & Company and testified that the contract was made with the copartnership through Jacob North, Sr., now deceased; whereupon it was objected that it was incompetent for her to testify to conversations and transactions between herself and the deceased. It has been held that when one [385]*385member of a copartnership dies, and the surviving member continues the business in the name of the copartnership, one who had business transactions or conversations with the copartnership, through the deceased member thereof, is prohibited by section 329 of the code from testifying to such transactions or conversations in an action by him against the copartnership. Mead v. Weaver, 42 Neb. 149. This is upon the the>e>ry that the copartnership is the representative of the deceased member. In this case, if the parties had insisted that the partnership, as now organized, is the successor of the partnership as it existed when the plaintiff first entered into contract with it, and that the substitution of the new member in the partnership for the deceased member made the partnership, as now organized, liable for the contracts it had entered into through the deceased partner, there would be great force to the objection; that is, if the plaintiff was seeking to enforce a liability which existed against the deceased at the time of his death and which had been transferred to the new member of the partnership, a liability which the deceased would now be interested in contesting, if living, the new partnership would be considered the representative of the deceased in such a contest, and, being the adverse party, the plaintiff would not be allowed to testify to such transactions. In 'this case, however, the defendant insisted, and plaintiff seems to have conceded, that the liability of the defendant copartnership, as how organized, depended solely upon contracts that had been made since its present organization, and that, in order to recover, the plaintiff must prove that she had entered into a contract with the copartnership, as now organized, by which the copartnership made itself liable for her claim. This issue was tried to the jury, and the evidence in regard to a prior conversation or contract with Mr. North, the deceased, is not within the prohibition of the statute. It is not as a representative of the deceased that the copartnership now defends. It is, as the issue was presented and tried, called upon to defend against its own contracts entered [386]*386into by the copartnership, as now constituted. The objection then was properly overruled.
3. It is argued somewhat at length in the brief that the evidence is not sufficient to support the verdict. A large amount of evidence was taken considering the amount involved in the litigation and the evidence is somewhat conflicting, but we cannot say that there is such a failure of testimony as to render the vex*dict erroneous on that account.
4. The court was asked to instruct the jury that the plaintiff could not recover against the present firm of Jacob North & Company for work that had been done for the firm of Jacob North & Company before the death of Jacob North, Sr. The refusal of this instruction is assigned as error. The issues were made, and the case was tried, as before stated, upon the theory that the copartnership,. with members as at present organized, expressly agreed that the plaintiff should continue her work, and that the firm of Jacob North & Company would pay her for all services rendered to that firm, notwithstanding that the membership had been changed.. It seems reasonable that the parties should so agree, under the circumstances. The instruction asked Avould be equivalent to telling the jury that there Avas no such agreement, which under the evidence in this case Avould be erroneous, as before stated.
The petition in error contains a large number of assignments, but such of them as are insisted upon in the briefs fall within the principles already discussed, and it is not thought necessary to pursue the matter further. We have discovered no error in the record requiring a reversal of the judgment.
Tile judgment heretofore entered is vacated, and the • judgment of the district court is
Affirmed.