Wetherbee v. Winchester

• Decision Date: 27 February 1880
• Citation: 128 Mass. 293
• Parties: Marshall Wetherbee, administrator, v. George C. Winchester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 293

Marshall Wetherbee, administrator, v. George C. Winchester

Supreme Court of Massachusetts

February 27, 1880

Worcester. Contract by the administrator of the estate of Milton Lane, deceased, for the balance of a mutual account between the defendant and Lane.

In the Superior Court, on May 21, 1878, the plaintiff filed interrogatories to the defendant, under the Gen. Sts. c. 129 § 46, one of which was as follows: "State whether or not you have an account with the plaintiff's intestate upon your books; and, if so, state what balance, if any, is shown due to the plaintiff's intestate by your book account, and annex a copy of said account to your answer to this interrogatory." To this interrogatory the defendant answered as follows: "I have an account of charges upon my books against the said Milton Lane, and an account of sums which I have credited him for the lumber which he sawed for me and merchandise sold by him to me, and the balance due to him upon my books is about $ 300; but this sum, by agreement is to be applied in part payment of certain notes held by me against said Lane, one of which notes being for the sum of $ 2500, the agreement between the said Lane and myself being that the balance at any time due the said Lane upon our accounts should be applied upon and in part payment of said notes held by me against said Lane. My books do not show the amount of balance without reference to the saw-mill account."

On June 8, the plaintiff represented to the court that the defendant had not fully answered said interrogatory, in that he did not state the exact balance due the plaintiff's intestate upon the books, and did not annex a copy of his book account nor any part thereof, to his answer; and, upon a hearing, the court ordered "fuller answer to be filed by July 15 1878."

On October 9, 1878, the defendant, by consent, filed the following additional answer: "I have upon my various books an account of debt and credit with said Lane, and the balance due said Lane is $ 293.61. This balance is obtained by deducting the charges upon my books against said Lane, for money paid and merchandise sold to him by me, from the amount with which said Lane has charged me for work done as per his bill rendered. This balance is by agreement to be applied in part payment of certain notes held by me against him, the said Lane, the agreement between said Lane and myself being that the balance at any time due the said Lane upon our accounts should be applied upon and in part payment of said notes held by me against said Lane."

In October 1878, the plaintiff, without leave of court, also filed this additional interrogatory: "In your amended answer to the second of the plaintiff's interrogatories in the above entitled action, you state that, by virtue of a certain agreement with the plaintiff's intestate, any balance which was due from you to the plaintiff's intestate was to be applied upon and in part payment of certain notes held by you against said intestate. State what notes were held by you against said plaintiff's intestate, to which, under said agreement, any balance due was to be applied, and annex copies of the same to your answer to this interrogatory." The defendant had due notice of the filing of this additional interrogatory, but filed no answer.

More than ten days after the filing of the last-named interrogatory, the defendant's counsel said to the counsel for the plaintiff, that he had sent the interrogatory to his client, but had...