Under the circumstances of this case, as they appeared at the argument, I think the amendment was properly allowed. No exception was taken to the amendment, nor to the recommittal of the report. The referee has reported that the note described in the amendment is due from the defendant to the plaintiff, and that there was no evidence tending to show that there is any defence to the same. What is there to hinder the plaintiff having judgment upon the report for the amount due upon the note?
The plaintiff cannot recover for the articles contained in the specification which belonged to his wife, nor for those which belonged to himself because there is no evidence that the defendant converted them into money. Smith v. Smith, 43 N.H. 536; Mann v. Locke, 11 N.H. 246. I also agree with the views of my brother CUSHING, that the contract could only be rescinded by all the parties to it.
Exceptions overruled. *Page 15