Todd v. Bishop , 1884 Mass. LEXIS 115 ( 1884 )

Field, J.

By the Pub. Sts. c. 167, § 24, a replication is not required except by order of court; but if the answer contains any new matter in avoidance of the action, it “ shall be deemed to be denied by the plaintiff,” or the court may require the plaintiff to reply thereto; and the plaintiff may, without such order, file at any time before trial a replication to the answer, “stating any facts in reply to the new matter therein.” No objection has been taken to the form of the answer. The new matter in the answer is in substance that the defendant had duly accounted with the plaintiff, and had paid him what was found due on accounting. To this new matter the plaintiff had the right to reply, and he replied by stating that the defendant has never paid him, and that the accounts rendered were false and fraudulent. The rulings of the court upon the replication were correct.

The defendant objects to the order of the court that he should answer all of the interrogatories filed by the plaintiff except the 9th and parts of four others. The objection is that these interrogatories relate solely to matters of defence. The plaintiff could only file interrogatories for the discovery of facts and documents material to the support of the suit. Pub. Sts. c. 167, § 49. Wetherbee v. Winchester, 128 Mass. 293. In Wilson v. Webber, 2 Gray, 558, 561, the court say that, “if a plaintiff, in answer to or avoidance of a defence, should set up any new or distinct matter, it would be competent for him to seek from the defendant a disclosure in support of such new issue.” The new issue set up by the replication in this case was, in substance, that the settlement did not bind the plaintiff, because the defendant had not actually bought and sold the stock for the plaintiff as in his accounts he had represented. The interrogatories were intended for the discovery, under the oath of the defendant, of the alleged fact that he had not actually bought and sold stock for the plaintiff. If the defendant proved that the parties had accounted together, and settled the account, the burden was on the plaintiff to prove that the account was false, and that he had been deceived thereby into the settlement. The interrogatories generally were such that the defendant was properly required to answer them. Hobbs v. Stone, 5 Allen, 109. Baker v. Carpenter, 127 Mass. 226. The only objection made in the brief of the defendant to particular interrogatories is to the 26th and the 33d; but the answer to the 26th shows that, if the question was immaterial, it did no harm to the defendant ; and the answer to the 33d removes the objection, if there was anything in it, that the interrogatory called for the contents of a check.

The defendant objects to the admission of the deposition of Henry Clews. This was taken under a commission issued by the court, upon interrogatories filed in the clerk’s office. The witness is described as of the State, county, and city of New York, and the deposition was taken there. It does not appear that the witness was within the Commonwealth at the time of the trial. This was a sufficient foundation for the admission of the deposition.

The defendant also objects to the interrogatories and answers, but the objection was overruled, except as to the 11th, 13th, and 15th. The defendant in answer to the plaintiff’s interrogatories had sworn that he probably bought the greater part of the stock for the plaintiff of Henry Clews and Company, of New York, and annexed a schedule of all his purchases of stock for the plaintiff. The deposition of Henry Clews, a partner in that firm, was taken by the plaintiff, for the purpose of showing that the defendant bought none of the stock specified in the schedule, of Henry Clews and Company. The objection, that some of the answers are not as complete as the defendant desired, would not exclude the deposition. The defendant had obtained no order from the court that the deponent should answer more fully. It appeared that Clews and Company kept all the necessary books for the transaction of a business so extensive as theirs. Evidence that no transaction such as the plaintiff inquired about appeared in their books was some evidence that no such transaction had taken place with them, if the usage of the firm was to enter all such transactions in their books, and this is implied, if not directly testified to, in the deposition. The books were beyond the jurisdiction of the court, and it was not necessary to annex copies of all the books in order to show that there were no such entries in them. No error in admitting particular interrogatories and answers has been shown.

The ruling that the plaintiff was not bound to prove all the allegations of his replication, but only so much “as might be necessary to meet the state of the proof under the answer,” was substantially correct.

It seems unnecessary to consider the remaining exceptions in detail. No error prejudicial to the defendant has been pointed out. The instructions appear to be either correct, or sufficiently "favorable to the defendant. There was evidence from which the jury may have found that the agreement between the parties was that the defendant should actually buy stocks for the plaintiff, and they have expressly found that the purchases were pretended and colorable only, and that" the plaintiff was ignorant of this until after the final settlement. If the defendant received the plaintiff’s money, and did not use it in the manner in which he was authorized to use it, the plaintiff is entitled to recover it.

Exceptions overruled.