
    
      DUBOURG & AL. vs. ANDERSON.
    
    Appeal from the court of the second district.
    ⅛ the return of a uote be p^yedfor,with th^court^wiii mentofiSpay" proviso’tu* it jnay be satisfi-turn of the
    The petition stated that the defendant is in-deb ted to the plaintiffs, in the sum of 850 dollars, with damage for the following cause, viz ; ^at *n March, 1818, they purchased from him {[fiy barrels of molasses, which he assured them he had on a plantation which he had lately sold, and gave to them an order therefore on his vendee, taking their notes for the said sum$ that on application to the latter person, the plain - tiffs found that the defendant had not any molasses at the said plantation. The petition con-eluded with a prayer that the defendant might be decreed to return the plaintiffs’ note, and, that they might have other and further relief.
    I he defendant was required to answer on oath to two interrogatories: 1. Whether the name of J. Anderson, at the foot of the order for the delivery of the molasses, was not written by him ? — 2d, Whether he did not receive the plaintiffs’ note for 350 uollars, in payment of the molasses mentioned in the order ?
    He pleaded the general issue. He answered the first interrogatory in the affirmative: to the second, he answered that he received the plaintiffs’ note, there mentioned, for all the molasses remaining in the cisterns of the plantation, after one of the plaintiffs had sent a young man to exami tie the molasses.
    There was a verdict and judgment for the-plaintiffs for 350 dollars, and costs.
    The defendant appealed.
    With the record came up copies of all the testimony, taken by the district court, and a bill of exceptions.
    This bill stated, that the plaintiffs having Closed their testimony, and the defendant bay» ing read his answer, he attempted to read his answers to the interrogatories put to him by the plaintiffs, when the latter stopped him, and moved the court to strike off the latter part of the answer to the second interrogatory, as not being responsive thereto, but the allegation ofca separate and independent fact, not called for in the interrogatory. This was opposed on two grounds ; that a motion to strike off part of the answer to an interrogatory must be made in writing within three days after the answer is filed, and, that the part prayed to be struck off was pertinent. But the court sustained the motion, holding that there is a material difference between an insufficient answer, and one which proceeds to alledge a separate and independent fact, not called for in the interrogatory ; that in the latter case the motion may be made orally and during the trial.
    Ory deposed that he was present when the parties contracted for the. sale of a quantity of molasses, which the defendant said he had in. his cisterns, averring that there were not less than forty, and he believed at least, fifty barrels.
    Lawrence said he purchased Anderson’s plantation, and took possession of it in March, 1818, when there were not more than sixty or seventy gallons of molasses in the cisterns, and the same quantity was still there in March following, when one of the plaintiffs came to receive it, that this quantity was in one of the cisterns, and in the other there was nothing but some very dirty syrop, which was not worth any thing; that the cisterns were good; and he does not think that the molasses could have been wasted or lost, in the least degree, between the time he took possession of the plantation» and that when Chapdell came for the molasses.
    Manade deposed, that he is a gngar. maker by profession; and, at the request of the plain* tiffs, he went with A. Dnplantier to examine the quantity and quality qf some molasses, pur* chased by them from the defendant, that, in the sugar house, he found in the .upper cistern about sixty gallons of molasses, and in the lower, a small quantity of dirty, black looking, water, Which? was neither syrop nor molasses, an<V worth nothing.
    A special error was assigned by the counsel of the defendant, and appellant, viz: that the prayer of the petition is for a special perform* anee, and the judgment for a sum of money.
   Derbigny, J.

delivered the opinion of the court. The defendant having sold to the plain* tiffs a quantity of molasses, represented,to be no| less than forty barrels. They gave him in payment their negociable note of hand for toe sum of S50 dollars. But having foujud, when they went to receive the molasses, that it fell short of the quantity represented, they refused to take it, and brought the present suit against him to obtain restitution of their note. They further ask for such other relief as equity and justice may demand It is'in proof; that instead df fori ty barrels, the quantity of the molases was noi more than fifty or sixty gallons ; so that there was evidently error or fraud in this transaction. But the appellant relies-on other grounds of de-fence. In the first place, he complains that one of his answers to the interrogations propounded to him was not admitted to its full extent, and that a part of it was improperly struck oil asir* relevant. But we are of opinion, that had thifj answer been received unconditional ¡y, it coin-tains nothing that could avail him. We therftr fore think it useless to examine whether the part struck off was or was not pertinent ; because, should we find that it was, wé would not send the case back to be tried anew, with the addition of evidence which we deem insignificant.

The appellant further contends that the judgment of thé district court is wrong and ought to he reversed, beeause it awards to the appellees that which they did $⅛⅜ ask for; the petition • . „ , ■, , , praying for the restitution of the note, and the, judgment decreeing payment of a sum of money, We think with the appellant that the judgment ought to have been for the thing prayed for; but in awarding the restitution of a note of hand, which the plaintiffs are liable to payydf nc>4 returned, the court had a right further to provide that, in defect of such restitution, the amount of the note should be paid. At'any rato, the prayer for general relief surely embraced that additional remedy. v..„

Gvymes and Canonge for the plaintiffs^ JAvermure and Eustis for the defendant.

It is, therefore, ordered, adjudged and de-A-' creed that the judgment of the district court bo annulled, avoided and reversed; arid this court, proceeding to render such judgment as they think ought to Have been given below, do order, adjudge and decree that the appellant shall pay to the appellees the sum of three hundred and fifty dollars, which payment maybe satisfied by the surrender of the note sued for; it is further ordered that the defendant pay costs. '  