Wetherbee v. Winchester

128 Mass. 293, 1880 Mass. LEXIS 68

Opinion

Gray, C. J.

Under the Gen. Sts. c. 129, § 46, a defendant is bound to answer interrogatories as to such matters only as tend to support the plaintiff’s claim, and not as to matters which relate exclusively to his own defence. Wilson v. Webber, 2 Gray, 558. Sheren v. Lowell, 104 Mass. 24. Baker v. Carpenter, 127 Mass. 226. If he neglects or refuses to answer a proper interrogatory, he may be defaulted. Gen. Sts. c. 129, § 56. But if matters which he is not, as well as matters which he is, bound to answer, are embraced in a single interrogatory, he is not required to take the risk of separating the two; and cannot, under a general order to make further answers, with which he has complied in apparent good faith, be defaulted for imperfections in such answers, without a specific order of the court as to the particulars in which they are insufficient, and opportunity to amen i them. Amherst & Belchertown Railroad v. Watson, 8 Gray, 529. Hancock v. Franklin Ins. Co. 107 Mass. 113. Hare on Discovery (2d ed.) 105.

In the present case, the defendant, having stated in his answers the balance of the account between the parties, was not bound to disclose the items of credit entered on his own books; for these related wholly to the matter of his own defence, by way of payment or set-off, against the plaintiff’s claim. Independently, therefore, of the question of the irregularity of the first interrogatory, as calling for copies which he was not bound to make, instead of for an inspection of the original books, the defendant was in no default with respect to that interrogatory. And he might properly disregard the additional interrogatory subsequently filed, because the court had not granted leave to file it. Hancock v. Franklin Ins. Co. above cited. The default was therefore wrongly entered, and should be set aside.

Exceptions sustained.