Wood v. Folsom

42 N.H. 70

Opinion

Bellows, J.

The causes of action in this case are not the same; there is nothing in the counts to show an identity; but, on the contrary, the want of identity is shown. Nor does it appear, aliunde, that the counts for money had and received and money paid, were designed by the pleader to embrace the claim for work and labor; and if it did so appear, we should not be inclined to hold, upon the adjudged cases in New-Hampshire, that the amendment could be made.

There are cases where there is nothing on the face of the original count that indicates the cause of action which is proposed to be introduced by the amendment, and still, as it is not wholly inappropriate, in some aspects in which the new claim may be viewed, the amendment will be admitted, upon establishing the identity by proof, aside from what appears on the face of the counts. But where the new matter offered is wholly inconsistent, as in the suit before us, the cases do not authorize the amendment. Goddard v. Perkins, 9 N. H. 488; Melvin v. Smith, 12 N. H. 462; Thompson v. Phelan, 22 N. H. 339; Hall v. Dodge, 38 N. H. 352.

The amendment must, therefore, be rejected.