Bailey v. Smith

Bellows J. The action' is for goods sold and delivered, and goods bargained and sold, and is brought to recover the price of certain telegraph poles. It having been held, as matter of law, that there was no delivery, the plaintiff moved to amend by adding the special count for not accepting the poles bargained, and paying therefor. We think the ruling of the coui’t, allowing the amendment, was right; that it was not introducing a new cause of action, within the principle of the decided cases, but that the court can see that the identity of the original cause is preserved; Stevens v. Mudgett, 10 N. H. 338; which we think covers the whole ground; and the cases where a general count is allowed to be filed, on failure to sustain a special count, or where the special contract has been rescinded, are in point. Burnham v. Spooner, 10 N. H. 165; Wiggin v. Veasey, 43 N. H. 313. Exceptions overruled.