Brennan v. McInnis

173 Mass. 471 | Mass. | 1899

Holmes, J.

So far as appears, the trustee is not chargeable, but we cannot say that if the contract between the defendant, Mclnnis, 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 plaintiffs have a right to know more specifically the facts from which the conclusions are drawn". Nutter v. Framingham & Lowell Railroad, 131 Mass. 231. Shaw v. Bunker, 2 Met. 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 plaintiffs are 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. Framingham & Lowell Railroad, ubi supra. 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 Harr. Ch. Pr, (7th ed.) 322; Wyatt, Pract. Reg. 204; Wigram, Discovery, pl. 285 ; Dan. Ch. Pr. (4th Am. ed.) 725. And before he can be required even to produce it for inspection, it must appear that the document is in his possession or subject to his control. This does not appear in terms. But as the trustee sets up an assignment of the proceeds of the contract to himself, the inference that he has the document, or a copy of it, is so strong that it is not unreasonable to call upon him to answer so far as to deny control, if he can do so with truth; and with regard to the demand for a copy it seems that the trustee did not object to furnishing one, but, confounding the contract with the assignment, wrongly stated that he had furnished one already. If he had a right to refuse he could have protected himself by offering to allow inspection. Under the circumstances of the case we think the default should stand. A shorter and perhaps clearer reason for the result is that the default was for failure to answer certain other interrogatories which the trustee refused to answer, not for an insufficient answer to the fifth.

Order affirmed.