Kearsarge Computer, Inc. v. Acme Staple Co., Inc., No. 7435

• Court: Supreme Court of New Hampshire
• Writing for the Court: KENISON
• Citation: 366 A.2d 467,116 N.H. 705
• Parties: , 86 A.L.R.3d 1081 KEARSARGE COMPUTER, INC. v. ACME STAPLE COMPANY, INC.
• Docket Number: No. 7435
• Decision Date: 30 November 1976

Page 467

366 A.2d 467 116 N.H. 705, 86 A.L.R.3d 1081 KEARSARGE COMPUTER, INC.
v.
ACME STAPLE COMPANY, INC. No. 7435. Supreme Court of New Hampshire. Nov. 30, 1976.

Page 468

McSwiney, Jones & Semple and Robert E. Bowers, Jr., Concord, for plaintiff.

[116 N.H. 706] Orr & Reno and Richard B. Couser, Concord, for defendant.

KENISON, Chief Justice.

This appeal results from cross actions by Kearsarge Computer, Inc., against Acme Staple Company, Inc., and by Acme against Kearsarge. Both actions relate to a certain data processing contract between the parties. Kearsarge sought payment for goods and services sold and delivered and damages for breach of contract. Acme also sued for breach of contract and alleged that, following termination of the contract, Kearsarge retained certain property owned by Acme. The cases were consolidated for a hearing on the merits before Master Earl J. Dearborn, Esquire, who held in favor of Kearsarge on all ultimate issues in both cases and awarded Kearsarge $12,313.22, plus interest and costs. Loughlin, J., approved the master's report and reserved and transferred the defendant's exceptions.

Under a one-year contract which began June 11, 1971, Kearsarge performed electronic data processing services for Acme for twenty-five dollars per computer hour or $2,000 per month whichever was greater. At a January 7, 1972 meeting between the parties, Acme terminated the contract on the grounds that Kearsarge's performance was unsatisfactory. In a letter dated January 10, 1972, Kearsarge requested information regarding the alleged data processing

Page 469

errors and any losses therefrom. Acme responded that such information had been sufficiently provided at the meeting. On April 12, 1972, Kearsarge served pretrial discovery interrogatories upon Acme one of which read:

'Please state in precise detail the alleged breaches by Kearsarge of the contract between it and Acme dated April 5, 1971, which resulted in Acme's alleged termination of said contract on January 7, 1972, giving the date of each alleged breach.'

In response, Acme listed eleven incidents of alleged breach in the degree of detail requested.

At trial the master refused to permit Acme to introduce evidence of any breaches other than those listed in the answer to the interrogatory. He also did not allow Mr. Moffitt, who answered the question, to testify as to his understanding of the question. The first issue in this case is whether the master erred in excluding[116 N.H. 707] Acme's evidence.

Ordinarily, answers to interrogatories do not limit the answering party's proof at trial. McElroy v. United Air Lines, Inc., 21 F.R.D. 100, 102 (W.D.Mo.1957); 4A J. Moore, Federal Practice § 33.29(2) (2d ed. 1975); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2181 at 577-78 (1970) citing Advisory Committee Note to Rule 33(b). However, the purpose of interrogatories is to narrow the issues of the litigation (Sawyer v. Boufford, 113 N.H. 627, 312 A.2d 693 (1973); Hartford Accident & Co. v. Cutter, 108 N.H. 112, 229 A.2d 173 (1967); F. James, Civil Procedure § 6.4, at 190 (1965)) and prevent unfair surprise by making evidence available in time for both parties to evaluate it and adequately prepare for trial. McDuffey v. Boston & Maine R.R., 102 N.H. 179, 152 A.2d 606 (1959). In order to achieve these goals, a party must fully disclose all requested information which he has at the time of the demand. McElroy v. United Air Lines, Inc., supra; see Farnum v. Bristol-Myers Co., 107 N.H. 165, 219 A.2d 277 (1966). Although the duty to investigate is not unlimited, a party must find out what is in his own records and what is within the knowledge of his agents and employees concerning the occurrence or transaction. F. James supra.

It is not clear from the record exactly what additional breaches Acme wished to introduce into evidence nor why Mr. Moffitt did not include them in the answer to the interrogatory. The problem seems to be that, at the time of the service of the interrogatory, Acme did not have readily accessible and precise records of all of Kearsarge's errors, omissions and breaches and that, because of the high rate of error, all data had to be checked for accuracy. If the time for answering was too short, Acme could have requested an extension. Superior Court Rule 33; RSA 491: App.R. 33 (Supp.1975). If the interrogatory was unclear or called for unduly burdensome research, Acme could have objected. Id. In any event every indication is that at the time of the answer the information relating to the additional breaches was within Acme's records or the knowledge of its employees. By failing to include all examples of breach, Acme did not answer the interrogatories with the completeness required by Rule 33.

Even if the answer was sufficiently complete at the time it was made, subjecting Kearsarge to the...