39 N.C. 390 | N.C. | 1846
The object of the bill is to obtain an injunction and relief against a judgment at law. The parties reside in Rutherford, and the defendant kept a retail shop, in which the plaintiff had dealt for several years. The bill states that on 27 January, 1841, the plaintiff paid the defendant all he then owed him on account, and took a receipt in full. It is annexed to the bill as an exhibit "A," and is in the following words: "27 January, 1841. Received of William Thompson in full for a judgment and all accounts up to this date. M. Mills." The bill further states, that the plaintiff then went to Henderson County, and worked there about 18 months, having left his wife and family at his residence in Rutherford; and that, upon his return home, the defendant demanded from him a debt of $120.70, for dealings which he alleged the plaintiff's family had in his store during the plaintiff's absence: that the plaintiff was very drunk at the time, and that the *302 defendant availed himself of that opportunity to obtain an undue advantage of him, and insisted that the plaintiff should give his bond for the said sum; and that he did so, (391) while drunk, and under the belief, from the defendant's representations, that the demand was just.
The bill further states, that, becoming sober, the plaintiff inquired of his family, what dealings they had, during his absence with the defendant; and was informed by them and believes, that not an article was purchased by any member, of his family, excepting only two pieces of tobacco; and that, in a short time afterwards, he went to the defendant and informed him of what his family had told the plaintiff, and requested him to produce his books containing the account so that he might see the items and the amount of it; but that the defendant refused to let him see his books, or to give him any satisfaction upon the subject, pretending, however, at some times, that the bond was taken for the dealings of the plaintiff's family as aforesaid, whereas they had no such dealings; and at other times pretending that it was taken, partly, for a book account, and partly, for a balance due on a note for $100, which the plaintiff had given the defendant for the price of a mare, whereas, the plaintiff had discharged the note by paying on it, at one time $85, and at another $20; and also, he had paid $10 on account, and had received no credit therefor.
The bill then contains several interrogatories; particularly, whether the parties did not settle all accounts on 27 January, 1841; and whether the defendant did not give the plaintiff the receipt or acquittance of that date exhibited with the bill: whether the defendant did not demand the bond for dealings of the plaintiff's family subsequent to the said settlement of January, 1841, or for what other cause. And it calls on the defendant to set forth a copy of his account, for which the bond was taken.
The answer admits that the plaintiff made the payment of $35, on the note for $100 given for the mare, and denies that he made any other. It states, that the plaintiff had been dealing with the defendant for ten or twelve years, and (392) was generally in his debt, and that he may have made payments of $20, and $10, though the defendant says he has no recollection of any such, and that, if they were made, they were credited on accounts existing at the time.
The answer states, that on 1 August, 1842, the plaintiff was indebted to the defendant in the sum of $120.70 upon accounts, in part for dealings of the plaintiff, and in part of his wife and family, and including a balance of $15, due on the note *303 for the mare, and interest thereon; and that the settlement was made and the bond given of that date, when the plaintiff was not in the least drunk, and "with a full knowledge of all the facts." The defendant denies, that the plaintiff ever applied for an inspection of the defendant's books; and states, that on all occasions the defendant declared the consideration of the bond to have been as herein set forth.
The answer then proceeds: "Respondent doth not know, whether exhibit "A" is a copy of a receipt executed by him to complainant, as he had no opportunity of seeing the original, and has no recollection of giving a receipt of that date. Since the last settlement with complainant, respondent did not deem it necessary to preserve the accounts, for which the said bond was given; and, consequently he can not now set out an exact statement of all the articles furnished complainant; but he recollects, that the same was for a variety of articles of merchandise, and for work in a blacksmith's shop, and for the balance of the note and interest, as aforesaid."
An injunction was granted on the bill, while on the answer, the defendant moved to dissolve. But the Court refused the motion, and ordered the injunction to stand to the hearing, but allowed the defendant an appeal. The court of equity compels an answer on oath, to enable the plaintiff to get a discovery of facts, (393) which he can not prove by indifferent witnesses, or to save him from the trouble and expense of thus proving them. The defendant is turned into a witness in the cause; and as a witness he ought honestly and explicitly to set forth everything he knows, or has the means of knowing and believes, that is material to the plaintiff's case, as well as such matters as constitute his own defense. But, judging from many answers that come up here, and, especially, in injunction causes, the purposes for which the answer is required, and the nature of the jurisdiction are often almost entirely overlooked. Answers are drawn for the sole benefit of the defendant, apparently, and not to disclose the truth and justice of the case. It is true, that often the bill is so defectively framed as not to compel a full discovery in the answer. And it is likewise true, that by not excepting to an insufficient answer, and replying to it, the plaintiff may be put to great disadvantage at the hearing, as the truth of a matter, charged in the bill, can *304 not upon that occasion be inferred from the silence of the answer as to it, or the omission merely of a denial. But when the defendant asks the Court to act on his answer, as he does when he moves to dissolve an injunction, it is not sufficient that he should make an answer, which merely does not admit the grounds of the plaintiff's equity, but it must set forth a full and fair discovery of all the matters within his knowledge, or in his power to discovery, and then deny the material grounds upon which the plaintiff's equity is founded. An answer that is evasive, that declines admitting or denying a fact positively, when it is in the party's power, if he will, to obtain information that will enable him thus to admit or deny the fact; and much more, an answer that keeps back information that is possessed by the party upon a material fact, on the pretense, that the defendant can not give the information with all the minuteness, of which the subject is susceptible; such an (394) answer ought not to entitle the person, who makes it, to any favor. Of that character is the answer in this case. Either from carelessness in the writer, or want of explicitness and candor in the party, this answer is grossly evasive. The equity of the plaintiff is, that the defendant obtained a bond from him for $120.70, on the misrepresentation, that he was indebted to him in that sum on account, for dealings by the plaintiff's family after 27 January, 1841. The bill adds, indeed, that the plaintiff was drunk when he gave the bond, and that is denied distinctly enough. But that is material in the present state of the case, since the defendant admits that the bond was not intended as a voluntary bond, but was understood to be founded on existing debts. Now, it is obviously, an important part of the plaintiff's case, that the period of the alleged dealings should be precisely fixed, in order to confine the account to the particular transactions included in the settlement. For that purpose the bill charges, that it must have been for dealings after 29 January, 1841, forasmuch, as on that day the parties settled for all previous dealings, and the defendant gave a receipt to that effect; and that receipt was filed in the office with the bill as an exhibit, and the defendant interrogated as to its genuineness. Instead of answering directly to the interrogatory, the defendant says he "does not know." Why? because in the copy of the bill sent to him, only a copy of the receipt was annexed, and he had no opportunity of seeing the original. But, if he had forgotten giving the paper, and wished to know the truth or to make it known to the Court, nothing was easier than to have gone to the office and seen the original. Instead of that, he merely *305 answers at large, that the account was for dealings of both the plaintiff and his family, without specifying any periods for such dealings, or denying that for 18 months the plaintiff had been out of the county, and thus leaving it to be inferred that the dealing had run through the 10 or 12 years spoken of in another part of the answer.
Besides, though expressly called on to set out a copy of the account on which the bond was given, and though (395) the defendant says it was for merchandise sold, in a country store, to the plaintiff and to his family, and for blacksmith's work, the defendant wholly omits to give any account. The reason given is, that "he can not now set out an exact account of all the articles furnished complainant," forasmuch, as "since the settlement he did not deem it necessary to preserve the accounts." It will be observed, that the defendant does not pretend that copies of the accounts were delivered to the plaintiff, nor that his books containing the original entries have been destroyed, nor that any book or paper has in fact been lost or destroyed, nor that he can not state the articles the plaintiff's family purchased. He says only, that he did not deem it necessary to preserve the accounts, for which the bond was given, and consequently that he can not furnish an exact settlement of all the articles furnished to the plaintiff himself. From this we collect that the defendant probably meant, without directly averring it, that the Court should understand or infer, that the particular papers, containing the computations and calculations at the settlement, were mislaid. But suppose the answer could be taken in that sense, yet the defendant gives no reason for not annexing copies of the accounts as they stand in his books; which ought to show the different settlements, and the several items. And although he might not be able to give an exact account of all the articles, yet he was bound to give the accounts as far as he could; and, if he could give no account, he was bound to say so, and give the plaintiff the full benefit of that singular circumstance.
It is clear, therefore, that the defendant has not given the answer that was called for, and that he might and ought to have given, but has evaded it in several essential points. Therefore, the injunction was properly continued to the hearing; and it must be so certified to the Court below. The (396) defendant must pay the costs in this Court.
PER CURIAM. CERTIFICATE ORDERED ACCORDINGLY.
Cited: Longmire v. Herndon,
