I am also of the opinion that neither of the new counts proposed by way of amendment in this case can be allowed. The first clearly sets up all entirely new and different cause of action, namely, the breach of a special contract to take and pay for fifty shares of stock in the plaintiff company, according to the terms of that contract. The second, which is in effect for not accepting the same number of shares bargained and sold, would seem to come very nearly if not quite within the doctrine of Bailey v. Smith, 43 N.H. 409, if shares in such a corporation could for this purpose be properly regarded as goods, wares, or merchandise. But I think they cannot. A share certainly does not answer the definition of either of those words in its generally received import, nor does it come within the legal definition of a chose in action. It has been defined to be a right to partake, according to *Page 388 the amount of a party's subscription, of the surplus profits obtained from the use and disposal of the capital stock of the company to those purposes for which the company is constituted. Aug. Am. on Corp., sec. 557. It is well settled in England that stock in incorporated companies is neither goods, wares, nor merchandise, within the statute of frauds, and that therefore a contract relating to the sale and transfer of them need not be in writing. Humble v. Mitchell, 11 A. E. 205; Dancurft v. Albrecht, 12 Sim. 189; Hargreaves v. Parsons, 13 M. W. 561.

I think the same rule may be properly applied in determining the admissibility of the proposed amendment in this case, and therefore that the second amended court cannot be allowed, upon the doctrine of Bailey v. Smith.

Whenever the form of action is not charged and the identity of the cause of action is preserved, the particular allegations of the declaration may be changed and others added, to cure imperfections and mistakes in the manner of stating the plaintiff's case — Wiggin v. Veasey, 43 N.H. 313, Bailey v. Smith, ib. 409; but these amendments are wholly inconsistent with the original counts. To sustain the count for money paid, the plaintiff must prove actual payment, and a prior request, or subsequent assent by the defendant. But money expended for the corporation is not money expended for an individual stockholder; and so too of labor done and materials furnished. To sustain a count for money lent and advanced, the plaintiff must prove that the transaction was essentially a loan of money. 2 Gr. Ev., sec. 112. A loan of stock will not support the count. Nightingale v. Devisne, 5 Burr. 2589; Jones v. Brinley, 1 East 1. The amendments are inconsistent with the count for goods sold and delivered. Shares in corporations are not, strictly speaking, chattels,^* but are rather in the nature of choses in action — Harris v. Stevens, 7 N.H. 456; nor does it appear from the amendment that the defendant has received or obtained possession of the money of the plaintiff, which equity and good conscience he sought to pay over, or which the parties have agreed to treat as money; nor any goods which a lapse of sufficient time will justify the inference have been turned into money.⁸²²⁴ Wood v. Folsom, 42 N.H. 70, and Burt v. Kinnie, 47 N.H. 361, are cases very much in point against the admissibility of this amendment.

Amendment disallowed.

^* See Whittemore v. Gale, 24 N.H. 488; — but see Keyser v. School District, 35 N.H. 483, 484, and Pinkerton v. M. L. Railroad, 42 N.H. 451, 452. REPORTER.

⁸²²⁴ And see Gordon v. Gordon, Grafton county, decided August term, 1875. REPORTER. *Page 389

The questions that arise on motions to amend are often very nice. By rule 16, "No new count or amendment of a declaration shall be allowed without the consent of the defendant, unless it be consistent with the original declaration, and for the same cause of action." I have seen no authority which appears to me to go so far as it would be necessary to go in order to hold that the cause of action described in either of the proposed special counts was identical with a cause of action for goods sold and delivered; and it therefore appears that the motion ought to be denied.