| Mass. | Feb 26, 1909
In this case the judge of the Superior Court allowed the plaintiff’s motion to amend the declaration by adding four new counts, and reported to this court the question whether the amendment was rightly allowed.
It is difficult to discover any question of law upon the record. As this is an action at common law, neither party can bring to this court for revision, either by exception or upon a report of the judge, any question which is not strictly a question of law. This court has no jurisdiction in such a case to change a decision'of the lower court upon a question of fact. Questions of discretion are, in their essence, questions of fact, and in an action at common law a judge of the Superior Court or a single justice of this court has no authority under the statute to report to this court a question of fact or a question of discretion. Electric Welding Co. v. Prince, 200 Mass. 886, and cases cited. The rule in equity is different.
So far as the allowance of the motion was the exercise of discretion we have no jurisdiction to consider it. The only question before us is whether it was without authority in law. This is answered both by the statutes and the decisions. Under the R. L. c. 173, § 48, amendments may be allowed in matter of form or substance “ which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.” It is provided by the R. L. c. 173, § 121,' that “ the cause of action shall be considered to be the same for which the action was brought, if the court finds that it is the cause of action relied on by the plaintiff when the action was commenced, however the same may be misdescribed; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action.” To such an order as was made in this case no exception lies. Batchelder v. Pierce, 170 Mass. 260" court="Mass." date_filed="1898-02-04" href="https://app.midpage.ai/document/batchelder-v-pierce-6426230?utm_source=webapp" opinion_id="6426230">170 Mass. 260. McLaughlin v. West End Street Railway, 186 Mass. 150" court="Mass." date_filed="1904-06-22" href="https://app.midpage.ai/document/mclaughlin-v-west-end-street-railway-co-6428600?utm_source=webapp" opinion_id="6428600">186 Mass. 150. Golding v. Brennan, 183 Mass. 286" court="Mass." date_filed="1903-05-21" href="https://app.midpage.ai/document/golding-v-brennan-6428192?utm_source=webapp" opinion_id="6428192">183 Mass. 286, 289.
There is nothing in the record to show that, as matter of law, the cause for which the action was intended to be brought did not include any and every kind of liability growing out of the defendant contracting company’s failure properly to perform its contract. The affidavit of Mr. Sprague amply warranted, if it did not require the allowance of the amendment.
It is no objection to the allowance of the amendment that the motion was made after a rescript had been sent from this court, and that the new counts state the liability differently from the original count, it being found that it is the liability of the defendant contracting company growing out of its failure to perform its contract, in whatever form it might exist, that was intended to be enforced when the action was brought. Frost v. Courtis, 172 Mass. 401" court="Mass." date_filed="1899-01-06" href="https://app.midpage.ai/document/frost-v-courtis-6426567?utm_source=webapp" opinion_id="6426567">172 Mass. 401. Stewart v. Thayer, 170 Mass. 560" court="Mass." date_filed="1898-03-30" href="https://app.midpage.ai/document/stewart-v-thayer-6426316?utm_source=webapp" opinion_id="6426316">170 Mass. 560.
What defenses may be open to the defendants, and whether
Order allowing amendment affirmed.