Pearson v. Smith, Clark & Co. , 54 N.H. 65 ( 1873 )

Sargent, C. J.

That amendments are allowed with great liberality in this country, as stated in Stearns v. Wright, 50 N. H. 293, is true; and that they are almost universally allowed, where they do not surprise, hinder, or delay the opposite party, and may, of course, be allowed in the discretion of the court, even in case of surprise, hindrance, or delay, as there stated ; — and the general proposition, which the plaintiff quotes from that opinion, that amendments of the declaration will be allowed if thereby the form of action is not changed, and if the identity of the cause of action is preserved, is no doubt true if taken with the qualifications which are affixed in that .opinion, viz., that the particular allegations in the declaration may be changed by amendment, and others superadded, in order to cure imperfections and mistakes in ‘the manner of stating the plaintiff’s case ; — and there is another condition precedent affixed to that general proposition, as stated in that opinion, which is not noticed by the plaintiff in this case, which is, that such amendment must be consistent with the original declaration, and must be such that the court can perceive that the plaintiff will offer in evidence, under the amendment, only some matter for the recovery of which the action was originally instituted.

In such case, so long as the form of action is not changed, and the identity of the cause of action is preserved, amendments may be made, etc. Taking this rule, then, as a whole, let us see what evidence must be and had been' introduced under the original declaration. First, the payment of money by the plaintiff must be proved, with the amount thus paid, and then he must prove that this note which the plaintiff had thus paid was originally without any consideration: no recovery could be had in that case, as stated, unless the money had been paid on the note. But under the amended count there is no allegation of the payment of any money, and it would not be necessary to prove that any was paid. Instead of seeking to recover back money paid in the new count, the plaintiff seeks to recover damages for the breaches of the defendants’ promises made to him in connection with the sale of a certain patent fork, and the right to use the same in certain towns in Massachusetts.

Under this new count the plaintiff' might also recover a much larger sum than he could have done under his first count; because the promises, for the breach of which the plaintiff seeks to recover in the last count, were founded and made, not alone upon the consideration of the note which the plaintiff had given him, but, as stated in the new count, these promises were founded upon the note, and upon various promises of the plaintiff, which might have proved of great value had the conti’act been fully earned out, and which the plaintiff alleges he made, and we are to presume he would have carried out if the defendants had performed their part of the contract. Now, it is to be presumed that all these different parts of the consideration were taken into the accoxxnt, and the value of the defendants’ promises estimated accordingly ; aixd if full damages are now to be recovered for the breach of all the parts and pai’cels of the defendants’ contract, or for all the several promises of the defendants, as claimed in this last couxxt, theix a much larger sum may be recovered tliaxx the simple amount of the note, which was only a part of the consideration for the defendants’ promises.

This new count could not therefore be consistent with the original declaration, and it is not such as that the court can see that the plaintiff will offer in evidence under the amendment only some matter for which the suit was originally instituted. Here we can see that the new count is not consistent with the original declaration, which sought only to recover back a certain sum of money paid, while this seeks to recover uncertain and unliquidated damages for the breach of certain promises; and the court can also see that the plaintiff seeks to recover in the new count a sum which upon his own statement ought to be larger than he could possibly recover under the old count.

This being an action of review, the statute has given the court a large discretion in the matter of pleadings — Colebrook v. Merrill, 49 N. H. 213; yet it is evident in this case that the presiding judge intended to decide this question according to the rules applicable in ordinary cases. That is the way the court would generally apply the rules in such cases. In this case we see no particular equities that call for any departure from the ordinary rule. The plaintiff has only to bring his action against the defendants, charging fraud and deception in the sale -of the fork, and recover his damages, if he has suffered any. In accordance with the general principle applied in so many cases in this state, which are cited in the briefs of both parties, the

Exceptions are overruled.