Weil Bros. v. Wittjen

| Miss. | Oct 15, 1917

Ethridge, J.,

delivered the opinion-of the court.

Weil Bros., a partnership doing business at Montgomery, Ala., composed of Isidor and Emil Weil, made a contract with Wittjen to buy cotton for them at Holly Springs, Miss. Under the contract it was provided and understood that the cotton bought under the contract, was to be paid for by drafts drawn upon the plaintiffs with bills of lading for the cotton attached; that the price was to be for a certain grade, and if the cotton shipped went above the grade, Wittjen was to be credited with' the difference in price above the contract grade, and if it went below the contract grade, he was to make good by paying the difference in the value of the contract grade and the grade which the cotton actually was. To the declaration was attached as an exhibit a statement of the cotton shipped, showing numbers, weight, and price. In one column was shown the amount of loss to the plaintiffs; in another was the amount of gain. Taking the statement of Weil Bros., plaintiffs, the balance in their favor amounted to four hundred and ninety-four dollars and fifty cents.,

The defendant filed a plea in the nature of an offset, to which was appended a statement of the cotton shipped, showing numbers, weights, and prices, and also showing the loss or gain on several bales, with a balance in favor of defendant of one thousand eight hundred ninety-five dollars and ten cents.

This plea was demurred to by the plaintiffs on the grounds: First, that the plea was a plea of general issue and a plea to set-off, joined in one plea; second, because the matters pleaded to set off the claim could not be pleaded in this suit; that the defense constitutes no matters of mutual indebtedness between the plaintiff and defendant; and that the plea sets up an offset for unliquidated damages. The demurrer was overruled by the court. Thereafter the defendant propounded interrogatories to the plaintiff, under Code, section 1938, in which interrogatories the plaintiffs were to furnish or answer giving the information as to transactions with the defendant, and in which the plaintiffs were requested to give the grades of the long list of cotton shipped by the defendant from Holly Springs, Miss., during the cotton season of 1913-1914, the number of bales, with marks, being attached to the interrogatory. These interrogatories were filed on the 14th day of November, 1914, and the answer of defendant was dated the 2d day of February, 1916. To this interrogatory the plaintiffs attached'an answer showing grades and marks of the number of bales. On the 6th day of July, 1916, plaintiffs propounded questions to Isidor Weil, which interrogatories by the plaintiffs were crossed by the defendant. In the particular cross-interrogatories under this deposition practically the same questions were asked Isidor Weil as had been propounded under the statute to the plaintiffs. In answer to the eighth cross-interrogatory he stated that “this information has been given previously and is in the hands of the defendant’s attorney,” not answering the interrogatory to this deposition in detail as in the interrogatory propounded under the statute. The .cause came on for trial, and the defendant moved to strike out the pleadings and for judgment for the defendant on its cross-demand for failure of plaintiffs to answer specifically the eighth cross-interrogatory. When this motion was made the counsel for plaintiffs offered to retake the deposition if the court thought proper to do so, and have the 'witness answer specifically, stating to the court that the deposition had been filed only a few days, and that he had not the opportunity to inspect it before that term of coart because of being engaged elsewhere. The court sustained the motion and granted final judgment for the defendant for the gross amount, from which judgment this appeal is prosecuted.

On the first proposition it was insisted by the appellant that under the authority of Hoover Chemical Co. v. Humphrey, 107 Miss. 810, 66 So. 214, a set-off cannot be maintained in this case, and that the plea of general issue and the plea' of set-off cannot be pleaded together. In the present case the plaintiffs, in their declaration, recognize in or give to the defendant a claim for a certain amount on a certain number of bales of cotton, and on certain other bales and certain other shipments charge the defendant with a balance due, thus recognizing the right of defendant to an indebtedness for a certain number of bales, and charging him with amounts due plaintiff for certain other bales, and undertaking to charge him with the difference according to their contention between the two amounts. The defendant in the plea of set-off makes out an account in like manner, recognizing that on certain shipments and certain hales of cotton the plaintiffs were entitled to recover of the defendant certain amounts, hut contending that on certain other hales of cotton and certain other shipments the plaintiffs were indebted to the defendant. The account of each of the plaintiffs and defendant recognized mutual dealings and mutual indebtedness, and the case of Chemical Co. v. Humphrey is therefore not applicable here. Under the statute, section 741, Code of 1906, it is expressly provided that the general issue and set-off may be pleaded together, as well as numerous other pleadings, and the court was correct in overruling the demurrer to the plea. The liability in this case is recognized, and the amount due appears certain if either the plaintiffs’ or defendant’s pleas were taken alone, but they differ only as to certain particular bales of cotton. This is not an unliquidated demand, but is a demand founded on contract, capable of caeulation, and the only dispute is as to the questions of fact.

We think, however, the case must be reversed because of the error of the court in sustaining the motion of defendant to strike the plaintiffs’ pleadings from the files, because of a failure to answer specifically tbe cross-interrogatories to a deposition taken by the plaintiffs. We think the interrogatories which were propounded under the statute, while there was a delay in answering them, were on file at the time the motion was made and had been on file some months, and it does not appear that there was any willful purpose to refuse to give the information called for. The plaintiffs ’ deposition, taken as it was in the case on notice, could not be treated as answers to questions propounded under the statute, but should be treated as an ordinary deposition, and if the answer was not specific, it should be suppressed-, but judgment should not be rendered as under the statute. The answer, however, of the witness, that the information had theretofore been given and was in the possession of defendant’s attorney, was an adoption by reference to the statement rendered under the statute; and we fail to see where it is so uncertain and evasive as to justify the action taken by the court. It seems to us, looking at the answer and the interrogatories propounded, that the information is as specific as an ordinary, intelligent witness would ordinarily answer a similar question. It - does not appear from any specifications that any information was withheld that was called for by the interrogatory.

Judgment is therefore reversed, and the cause remanded.

Reversed and remanded.