Fogg. v. Hoskins
Supreme Court of New Hampshire
Assumpsit. (See Fogg v. Hoskins, 57 N. H. 484.) Subject to the plaintiff’s exception, the court overruled a motion to amend the declaration by adding four counts, alleging in the first the contract of March 26, 1872, and a breach by the defendant; in the second, the payment of $901 by the plaintiff to the defendant, in consideration of which the defendant promised to pay the Leach mortgage, but failed to do so; in the third, the contract of December 29, 1871, and the…
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Assumpsit. (See Fogg v. Hoskins, 57 N. H. 484.) Subject to the plaintiff’s exception, the court overruled a motion to amend the declaration by adding four counts, alleging in the first the contract of March 26, 1872, and a breach by the defendant; in the second, the payment of $901 by the plaintiff to the defendant, in consideration of which the defendant promised to pay the Leach mortgage, but failed to do so; in the third, the contract of December 29, 1871, and the contract of March 26, 1872, and in consideration that the plaintiff would deliver up the two $500 notes to the defendant, he…
1Opinion of the CourtBingham, J.
The plaintiff claimed to recover under the original counts the $901 secured by the Leach mortgage. If the court can see that the identity of the cause of action is preserved in the new counts, they may be allowed. It is clear that the identity is preserved in the first three, and they are allowed.
If the purpose of the fourth count is to enable the plaintiff to try his right to recover of the defendant the $1599, it would be a different cause of action, and the count was properly disallowed. But we understand that the purpose of it is to enable the plaintiff to recover the damage done to his…
2Cases cited2 opinions
- Cahill v. TerrioSupreme Court of New Hampshire · 1875
- Burnham v. PlantSupreme Court of New Hampshire · 1876