Brennan v. Mcinnis

• Decision Date: 20 May 1899
• Citation: 53 N.E. 896,173 Mass. 471
• Parties: BRENNAN et al. v. McINNIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 471

53 N.E. 896

BRENNAN et al. v. McINNIS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1899

COUNSEL

Percy W. Carver, for appellant.

Nathan D. Pratt, for appellee.

OPINION

HOLMES J.

So far as appears, the trustee is not chargeable, but we cannot say that, if the contract between the defendant, McInnis, and the city of Boston were set forth, together with an account of all the receipts and disbursements of the trustee in pursuance of the contract and of the assignment to him, it might not appear that at the time when the writ was served there was money due from the trustee to the defendant, or even that the assignment was merely a colorable device. It may be unlikely, but it is possible, and therefore the general course of the interrogatories was justified. The trustee could not protect himself from further answering by stating a conclusion, such as that at the time of service the defendant was indebted to him for a sum mentioned, expended by the trustee in pursuance of the contract, and in excess of another sum mentioned as the amount received by the trustee. That the defendant was indebted to the trustee, and that the trustee's expenditures were in pursuance of the contract, are conclusions of law, and the plaintiff has a right to know more specifically the facts from which the conclusions are drawn. Nutter v. Railroad Co., 131 Mass. 231; Shaw v. Bunker, 2 Metc. (Mass.) 376, 380. The interrogatories are not cross examination in such sense as to be open to objection. They are not put for the purpose of discrediting answers which the plaintiff is bound to take as true. If the result be to discredit the assignment to the trustee, the record discloses no objection to that. See Neally v. Ambrose, 21 Pick. 185.

It is said that, as the order to answer was a single general order if any one of the interrogatories was improper the trustee could not be defaulted. Nutter v. Railroad Co., 131 Mass. 231. See Wetherbee v. Winchester, 128 Mass 293, 295. This suggestion has caused us some hesitation especially with regard to the fifth interrogatory. There may be a question whether the trustee could be compelled to furnish a copy of the contract, or to do more than to produce it for inspection. Compare Wetherbee v. Winchester, 128 Mass. 293, 296, with 1 Har.Ch.Prac. (7th Ed.) 322; Wyatt, Prac.Reg. 204; Wig.Disc. pl. 285; 1 Daniell, Ch.Prac. (4th Am.Ed.) 725. And before he can...