Davis v. Mills

• Decision Date: 22 May 1895
• Citation: 163 Mass. 481,40 N.E. 852
• Parties: DAVIS v. MILLS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 481

40 N.E. 852

DAVIS v. MILLS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1895

COUNSEL

James T. Joslin and Ralph E. Joslin, for plaintiff.

S.W Clifford, for defendants.

OPINION

KNOWLTON J.

The defendants' first exception is to the refusal of the court to order the plaintiff to answer the sixth of the interrogatories filed under the statute, which called upon the plaintiff to repeat as fully as he could the conversation between him and the defendants' agent when the oral contract on which the action was founded was made. The answer relied on by the defendant was simply a general denial, and the interrogatory was not intended to elicit evidence in support of any matter of defense alleged by the defendant but only to ascertain the evidence relied on by the plaintiff to maintain his case. Clearly, it was not within the statute which only permits interrogatories to be put for the purpose of obtaining facts that will be of service to the interrogating party in maintaining his own allegations. Pub.St. c. 167, §§ 49-56; ^[1] Wilson v. Webber, 2 Gray, 558; Baker v. Carpenter, 127 Mass. 226; Wetherbee v. Winchester, 128 Mass. 293.

It is contended that the plaintiff waived his right to refuse to answer this interrogatory by answering other interrogatories which he could not have been compelled to answer. But we think there is no good ground for this contention. The defendants cannot justly complain that interrogatories were fully and fairly answered which the plaintiff might properly have declined to answer. Nor is there any good reason why the answering of these should deprive the plaintiff of his right to refuse to answer others, If they were improper. Fels v. Raymond, 139 Mass. 100, 28 N.E. 691.

There was evidence from which the presiding justice might well find the witness Porter to be an expert in regard to the quality and principal component parts of flour. He had been a miller for more than 20 years, and had been accustomed to use a process for analyzing flour that was also used by others more or less. The fact that he was not a practical chemist would not necessarily make his testimony valueless. The time which had elapsed between the sale of the flour to the plaintiff and the examination of it by the witness did not render the evidence incompetent. There was testimony that there would be but little change tn the flour, if it was properly kept.

It is by no means clear that the specimens...