Gilman v. School District

An amendment will not Le granted, which, when made, would leave the writ defective on its face.

Assumpsit, for $200, for labor and services done and performed, and materials found and provided, by the plaintiff for the defendants, in building a school house, and for $200 had and received by the defendants to the plaintiff’s use. At the August term of this court, in 1844, the plaintiff moved to amend his declaration by inserting therein a new count, in which he avers, “ That said district, on the 31st day of May, A. D. 1842, by a certain writing obligatory, sealed with their seal and signed by Stephen Kenney, Samuel T. Cram and George W. Gilman, agents of said defendants, agreed with the plaintiff* that he should build for them a school house of twenty-five by eighteen feet, agreeably to a plan, &c., for one hundred and seventy-five dollars ; and the said Gilman thereby bound himself to build said house, on a spot selected by said district, &c., of suitable materials, in a workmanlike manner; to clapboard it, find shuttei’s, underpin, and finish the inside ready for a stove by the 1st day of December, then next and the said plaintiff avers that he did perform, &c. The defendants objected to the reception of said amendment, on the ground that the contract stated in it could not be the foundation of an action of assumpsit. The plaintiff offered his affidavit, by which it appeared that he lost said contract at a school district meeting, prior to the commencement of the action, and saw nothing more of it till it was returned to him after the commencement of this suit by a voter in the district, who told him he found it at the school house after said meeting. It was agreed by the parties that if, in the opinion of the court, the amendment is admissible, the same being made on such terms as the court shall direct, the case shall stand for trial.