Sanborn v. Railroad , 76 N.H. 65 ( 1911 )

The trial justice acted within his authority in suspending Rule 16 of the superior court. Petition of Rindge, 54 N.H. 106, 108; Eastman v. Company,44 N.H. 143, 154.

Under the liberal practice in vogue in this state since the decision in Stebbins v. Insurance Co., 59 N.H. 143, if not from an earlier date, it has been customary for the court, if justice would be promoted, to allow amendments in legal proceedings, either of form or substance, provided that in so doing the rights of third parties would not be interfered with and the case could be rightly understood by the court. P. S., c. 222, ss. 7, 8. The underlying principle seems to be that a litigant should be accorded such remedies and methods of stating his grievance as may be necessary "to meet the meritorious contingencies of his case." Brooks v. Howison, 63 N.H. 382, 389. He has been permitted by amendment to change an action of trespass to land into a bill in equity for specific performance of an agreement to convey the land (Uncanoonuck Road Co. v. Orr, 67 N.H. 541); an action of debt for rent, into assumpsit for use and occupation (Meredith etc. Ass'n v. Drill Co., 66 N.H. 539); trespass to land, to assumpsit for use and occupation (Elsher v. Hughes,60 N.H. 469); and assumpsit, to case for flowing land. Morse v. Whitcher,64 N.H. 591. These decisions are sufficient to illustrate the principle and to demonstrate that the trial justice was acting in accordance with the established practice in permitting the plaintiff to amend his declaration by substituting a count in case.

The plaintiff could have inserted in the original draft of his writ counts in assumpsit and case. Broadhurst v. Morgan, 66 N.H. 480. What could have been done originally may be accomplished by amendment, if justice will be promoted thereby. It would seem that prudence would have dictated the insertion of both counts in the original draft to meet the meritorious contingencies of the plaintiff's case. What he is seeking to recover is compensation for the injury he received while in the defendants' employment. If the defendants' agent had authority to make the contract of settlement, the plaintiff would obtain his compensation in the count in assumpsit. If the agent was without authority to make the contract, then he would obtain it in the count in case. The subject-matter involved in the two counts is the same, although the issues raised are different. Meredith etc. Ass'n v. Drill Co., 67 N.H. 450. By declaring in assumpsit the plaintiff misconceived his remedy, as facts essential to the maintenance of his supposed right did not exist. Noyes v. Edgerly, 71 N.H. 500, 504, 505. But by misconceiving his remedy he did not preclude himself from asserting his actual rights in a new action, or by amendment. Gould v. Blodgett,61 N.H. 115.

In Gould v. Blodgett, the action was assumpsit for the price of a horse rake which the plaintiff understood his agent had sold to the defendant. At the trial before the referee, it turned out that the agent did not sell the rake as he was authorized, but delivered it to the defendant in payment of his own pre-existing debt. Upon filing the report, the trial court allowed the plaintiff to amend his declaration by filing a count in trover, and it was held that the amendment was properly allowed. This case cannot be distinguished from the present one. As the amended count relates to the same subject-matter as the original count and the case can be rightly understood by the court, and as it does not appear that the rights of third parties will be interfered with by the allowance of the amendment, while the plaintiff would be put to unnecessary expense if required to bring a new action, the trial court was warranted in finding that justice required that the plaintiff's motion should be granted.

Exceptions overruled.

All concurred.