Stern v. Filene , 96 Mass. 9 ( 1867 )

Chapman, J.

The defendant, having filed certain interrogatories to be answered by the plaintiff, under Gen. Sts. c. 129, §§ 46-57, obtained an order at June term 1865 that the plaintiff should answer the same, or show cause to the contrary. At the next December term, the plaintiff not having complied with the order, the defendant moved for a nonsuit. The motion was denied, and the case was continued. At March term 1866 the motion was renewed, and was again denied, but the ground on which the denial was placed by the judge does not appear. Section 56 of the statute provides that if an order to answer is not complied with, “ the court may enter a nonsuit or default, as the case may require.” This leaves it at least within the discretion of the judge to delay the nonsuit or default as long as he may think reasonable. Townsend v. Gibbs, 11 Cush. 158. If he had, after denying the motion, compelled the defendant to go to trial without having the interrogatories answered, the exceptions would have raised the question whether the defendant had not an absolute right to the answers before going to trial. But it does not appear that he did so, or that he would have refused a further continuance of the case if the defendant had moved for it. For aught that appears, the defendant chose to go to trial without the answers, in preference to farther delay. The exception is overruled, on the ground that it was within the discretion of the presiding judge to overrule the motion for a non-suit at that time, and it does not appear that his ruling went beyond this.

The plaintifFs counsel contends that, as the motion was made at a previous term and overruled, it could not be again entertained at the March term. But this ground is untenable. The defendant had a right to renew it, and the court had power to act upon it as if it had never before been made. There might be reasons for granting it in March which did not exist at the prior term. We have no occasion to discuss the reasons on which the decision was made at December term, because they are not be fore us for revision. The ruling resulted merely in a continuance If the judge who presided at the March term had put his decision on the same ground, we might have had occasion to decide’ whether a party can, by selling his claim and permitting a suit to be brought in his name, deprive a defendant of ihe benefit of the statute.

The defendant also excepted to the admission in evidence of the answer of Bernard Adler, a deponent, to the 11th cross-interrogatory. The deponent was asked whether the defendant did not on a certain occasion claim from Stern that there was something due him for not delivering a lot of goods purchased of him. The question was answered by stating what claim the defendant did make. We think this answer is sufficiently responsive, in a foreign deposition, to be admitted in evidence. It states what the transaction was in respect to which the inquiry was made, and enabled the jury to judge how far it varied, if at all, from the assumptions of the interrogatory.

The deposition of Adler was sufficient to authorize the jury to find that the goods were sold and delivered to the defendant. He said that he knew of the sale, and the goods were sent to another store to be packed for the defendant, and the receipt thereof acknowledged; and they were sold at market prices. On cross-examination, he said he was present at the sale of the goods by Stern to Filene. The jury would be authorized to infer that the goods were sent to be packed in conformity with the directions of the defendant. This would constitute a delivery. Exceptions overruled.