Cocheco Aqueduct Association v. Boston & Maine R. R.

Assumpsit, reported 59 N. H. 312. The plaintiffs moved to amend the declaration by adding a count in case.

If the whole wrong had been a violation of a contract within the statute of frauds, the statute would be a defence in any form of action. Vasse v. Smith, 6 Cranch 226. But here was another wrong. 1 Ch. Pl. 135; Govett v. Radnidge, 3 East 62; Coggs v. Bernard, 2 Ld. Ray. 909.

It is said that equity will enforce certain verbal contracts, notwithstanding the statute. But “ the fraud against which equity will relieve is not the mere moral wrong of repudiating a contract actually entered into,” but not in writing. Browne St. Frauds, ss. 437, 439; 2 Sto. Eq. Jur., ss. 768, 757; Montacute v. Maxwell, 1 P. Wms. 618; Whitchurch v. Bevis, 2 Brown Ch. 567, 569 n.

The plaintiffs, by varying the form of their action, cannot alter the intrinsic nature of the case. Add. Torts 726; Ross v. Terry, 63 N. Y. 614; Neftel v. Lightstone, 77 N. Y. 96; Sparman v. Keim, 83 N. Y. 245; Wright v. Geer, 6 Vt. 151; Vail v. Strong, 10 Vt. 457; Mann v. Birchard, 40 Vt. 326; McDermott v. M. Co., 38 N. J. Law 53; Martin v. Hand, 11 R. I. 306; Ill. O. R. R. v. Phelps, 4 Bradw. 238; Und. Torts 102.

The amendment may be allowed if justice requires it (Merrill v. Perkins, 59 N. H. 343, Elsher v. Hughes, 60 N. H. 469); and the question of justice, so far as it is a question of fact, is determinable at the trial term. Garvin v. Legery, 61 N. H. 153. It does not appear that an amendment will be useful. Whatever the form of action, the question will arise at a new trial whether there is evidence of any other wrong than a breach of contract on which no action can be maintained.

Case discharged.