Citing King v. R. R., 176 N.C. 301; Belch v. R. R., 176 N.C. 22; McLaughlin v. R. R., 174 N.C. 182; R. R. v. Dill, 171 N.C. 176; Fleming v. R. R., 160 N.C. 196; and Union Pac. Ry. Co. v. Wyler, 158 U.S. 285, 39 L.Ed., 983. See also Sams v. Price, 119 N.C. 572, 574, 575, and cases cited. However, under the facts of this case we do not regard the amendment as introducing such an entirely new and distinct cause of action as to have put it beyond the discretionary power of the court to permit it. The fact that, if standing alone, it might form the basis of a separate suit, if indeed it had that completeness, is not determinative. Many suits are properly based on a series of related transactions, any one of which might constitute a separate cause of action.

This means that the material, essential, and ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff should allege all the material facts, the ultimate facts which constitute the cause of action — but not the evidence to prove them. McIntosh P. P., 389, sec. 379; Winders v. Hill, 141 N.C. 694, 54 S.E. 440; Sams v. Price, 119 N.C. 572, 26 S.E. 170; Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794. With few exceptions, only the facts to which the pertinent legal or equitable principles of law are to be applied are to be stated in the complaint. McIntosh P. P., 388, sec. 379; Moore v. Hobbs, 79 N.C. 535; Webb v. Hicks, 116 N.C. 598, 21 S.E. 672; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Crump v. Mims, 64 N.C. 767; Insurance Co. v. Smathers, 211 N.C. 373, 190 S.E. 484; Woodley v. Combs, 210 N.C. 482, 187 S.E. 762; Poovey v. Hickory, 210 N.C. 630, 188 S.E. 78.

The plaintiff cannot declare upon one cause of action and recover upon an entirely different cause of action. Sams v. Price, 119 N.C. 572. It cannot be gainsaid that the plaintiffs, who are sui juris, may forego whatever equity they may have had, and rely solely on their legal title, which they already held, notwithstanding the mortgage.

All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs, which is denominated a civil action (Rev., sec. 354), and the court gives relief according to the facts alleged and established. Clark's Code (3 Ed.), sec. 133, and notes; Sams v. Price, 119 N.C. 572; Bowers v. R. R., 107 N.C. 721; Voorhees v. Porter, 134 N.C. 591. The complaint in this case is the product of a careful and skillful pleader, knowing his client's cause of action and able to state it with accuracy and precision. Its allegations are abundantly sufficient to cover every phase of the evidence, and it is sufficient in substance and in form.

The same purpose to uphold whatever jurisdiction the plaintiff shall elect is clearly shown in all our decisions. In the late case of Sams v. Price, 119 N.C. 572, the Court says: "If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or an implied contract (Stokes v. Taylor, 104 N.C. 394; Fulps v. Mock, 108 N.C. 601; Holden v. Warren, 118 N.C. 326), or either in tort or contract (Britton v. Payne, 118 N.C. 989; Schulhofer v. R. R., ibid., 1096; Timber Co. v. Brooks, 109 N.C. 698; Bowers v. R. R., 107 N.C. 721), or as a common-law action or one under the statute (131) ( Roberson v. Morgan, 118 N.C. 991), the Court willsustain the jurisdiction." It would be passing strange if since the Constitution, Art. IV, sec. 1, the courts could turn a party out of court and require him to come back again by another door to litigate exactly the same sum, upon the same facts, when he has stated his cause of action in a manner which entitles him to have a decision in the forum which he has chosen.

Woodbury v. Evans, 122 N.C. 779; Knott v. Taylor, 96 N.C. 553; Robeson v. Hodges, 105 N.C. 49. And if the amendment is such as to cause surprise, it is cause for a continuance only. Sams v. Price, 119 N.C. 572. Where the court can see that the opposing party would not be misled, the amendment should be allowed. Garrett v. Trotter, 65 N.C. 430.

In such cases the defendant is entitled to a continuance. Sams v. Price, 119 N.C. 572. To say that because the defendant was allowed to answer, is an answer to what is said in Brooks v. Brooks, would be to "stick in the bark," and to ignore the principles of justice and fair dealing upon which it is based. It could do the defendant no good to allow it to answer and deny the new allegations in the amended complaint, and force it into trial at once, without time to get its evidence to sustain its denial.

To like purport, Banking Co. v. Morehead, 126 N.C. 279; Craven v. Russell, 118 N.C. 564; Ely v. Early, 94 N.C. 1; Hendon v. R. R. (Ante 110). In Sams v. Price, 119 N.C. 572, it is said: "The plaintiff could not abandon his cause of action, and recover upon an entirely different cause of action, without amendment. It is true, if the defendant makes no objection, and tries the case in changed aspect, he will be taken as assenting thereto, and the amendment of the pleadings can be made after verdict to conform them to the case as tried." In the present case there is not an entirely different cause of action, but a controversy over the terms of an adjustment of the original cause of action, which adjustment is set up by the defendant to reduce the amount of the recovery, and the amendment is made before judgment.

It is true that, under the Code, the demand for relief is immaterial, and the court will give any judgment justified by the pleadings and proof. Knight v. Houghtalling, 85 N.C. 17; Stokes v. Taylor, 104 N.C. 394; Hood v. Sudderth, 111 N.C. 215; Sams v. Price, 119 N.C. 572; Adams v. Hayes, 120 N.C. 383. But upon inspection of the complaint this action is brought to recover an overpayment of $132.27 of interest, alleged to have been made by mistake and ignorance.

The defendant objected to the introduction of the deed, because of its alleged irrelevancy — first, because the complaint alleged the title to the property to be in the plaintiffs, in fee, and the answer admitted it, and (188) therefore the title was not in issue; and, second, because it tended to contradict the complaint. The counsel of the defendant, here, cited as an authority to sustain his position Sams v. Price, 119 N.C. 572. In that case the plaintiff in his complaint declared on a contract made directly with the defendants.