American Surety Co. of New York v. Blaine

(after stating thfe facts as above).

We think the contention that the cause of action alleged in the original petition was abandoned and a new cause of action set up in the amended petition on which the trial was had must be sustained. Tests by which to determine such a contention, the Supreme Court said in Lumber Co. v. Water Co., 94 Tex. 456, 61 S. W. 707, are:

“(1) Would a recovery had. upon the original bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings?”

A “solitaire diamond ring” and a “solitaire diamond set in a stick pin” are not one and…