Amendments — Rescission of Contracts. Under the count for money had and received in the first *Page 239 suit, the drafts set forth in the amended specification were clearly admissible in evidence, the signatures being first proved. The question of filing or amending a specification is ordinarily one of discretion, to be exercised by the judge who tries the case. The office of a specification is to apprise the defendant of the nature of the plaintiff's claim where the counts in the declaration are general. The defendant called for no specification, and the plaintiffs might therefore have offered the drafts in evidence without filing one.** The furnishing of a specification was therefore a gratuity on their part. It could not possibly operate to prejudice the defendant. On the contrary, it notified him of the exact nature of the plaintiffs' claim. No objection could lie to their filing it, or amending it after it was filed.
In the second suit, the declaration was for "corn, flour, and divers goods, wares, and merchandise sold and delivered, and for interest upon money due and owing from the defendant to the plaintiffs." Such a declaration would not be supported by a note or draft offered in evidence. A specification becomes part of the declaration when it states a cause of action consistent with the declaration. The specification cannot enlarge or modify, alter or amend, the declaration. Pickering v. DeRochemont,45 N.H. 77. As the drafts could not be given in evidence under the declaration, it follows that the specification could not be amended so as to include the drafts.
The question then arose "whether the plaintiffs should have been allowed to add a count, or specification, covering said drafts." The case assumed that the original debt had been paid, and no longer existed. The amendment offered was not for the purpose of avoiding a variance, or supplying an allegation accidentally omitted; but the plaintiffs asked to insert a new declaration, descriptive of a different cause of action. It hardly admits of a question, even under the very liberal provisions of our statute permitting amendments, and of our numerous decisions upon the subject, that the plaintiffs could not be permitted to do this. It is unnecessary, however, to consider this question, because, the defendant having failed to perform his promise, which was the consideration of the plaintiffs' agreement to discharge the original debt, they are thereby placed in a situation by the defendant where they can treat the contract as having been rescinded, and consequently can fall back upon the original debt, and recover for the same under the count for corn, flour, c., sold and delivered; and the amount they would be entitled to recover would be the same as the amount due upon the two drafts. As exact justice has been done the parties by the verdict which was returned, there is no occasion to disturb the same.
This view of the case makes it unnecessary to consider the question raised by the plea of the statute of limitations. The case of Rollins v. Horn, 44 N.H. 591, however, seems to be an authority against the position taken by the defendant.
The result of these conclusions is, that in the first suit the plaintiffs *Page 240 are entitled to judgment for the amount of the two drafts set forth in their amended specification. In the second suit they are entitled to judgment for the sum due for corn and flour sold and delivered, as set forth in the declaration, upon bringing said two last mentioned drafts, if still in existence, into court, and surrendering them to the defendant. The amount for which judgment is to be rendered in the second suit is the same as the amount due on the two drafts.
** Bean v. Brown, 54 N.H. 396, 397.
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