Leave to file an amendment changing the form of action, when applied for after verdict rendered for the defendant, may be refused on the ground that the application is not seasonably made, and that justice does not require a new trial. When a covenant of a lease has been broken by the lessor, and the benefit received by the lessee from his use of the premises is more than the damage resulting from the breach of covenant, the excess (not exceeding the stipulated rent) may be recovered in indebitatus assumpsit.
DOE, C. J.
In the first action the amendment if allowed would be useless without a new trial. The motion to amend was not seasonably made, and it does not appear that justice requires a new trial. The equitable principle of Britton v. Turner and Horn v. Batchelder ( 6 N.H. 481, 41 N.H. 86, Wadleigh v. Sutton, 6 N.H. 15, Elliot v. Heath, 14 N.H. 131, Clough v. Clough, 26 N.H. 24, 32, Davis v. Barrington, 30 N.H. 517, 528, Page v. Marsh, 36 N.H. 305, 308, Smith v. Newcastle, 48 N.H. 70, Blodgett v. Berlin Mills, 52 N.H. 215, 220, Ellsworth v. Brown, 55 N.H. 396) is applicable to a lessor's claim for use and occupation. In the second action the amendment being seasonably applied for, should be allowed if justice requires it. Morgan v. Joyce, ante, p. 476.
Case discharged.
ALLEN, J., did not sit: the others concurred.