
    A. W. Harrison vs. A. M. Dodson, and others.
    
      Sum. Pro. — Practice—Answer—Evidence.
    Where, in the process jurisdiction, the plaintiff uses the defendant’s answer to interrogatories, he must rely upon that alone, and cannot resort to other evidence.
    The rule also is, that if the defendant’s answer charges him with a liability, he cannot discharge himself by his answer; but where many particulars enter into the answer to show the liability, the rule does not apply, and the whole must be taken, although facts are stated, showing the defendant’s non-liability.
    BEFORE MUNRO, J., AT ABBEVILLE, FALL TERM, 1857.
    The report of bis Honor, the presiding Judge, is as follows:
    “This was an action upon an account for soap, inks, perfumery, &c., sold by tbe plaintiff, a merchant in Philadelphia, to the defendants, residents and merchants in Abbeville District.
    
      “ The plaintiff served the defendants with interrogatories to be answered on oath. One of the defendants only, A. M. Dodson, answered. In his answers, he stated, that the defendants were partners in trade, and the business of the firm was managed by himself. That in January, 1857, an agent of A. W. Harrison called at the store and urged him to order a bill of goods, and if the goods ordered did ,not suit when they came, he could return them. That he did order the bill of goods with which he was charged.
    “The goods were received but did not suit him, and after taking from the box as many as amounted to ten dollars and forty-eight cents, he sent the remainder back.
    
      “The plaintiff.objected to parts of tbe answers, because they were not responsive to tbe interrogatories. Tbe plaintiff then offered to prove tbe original orders of A. M. Dodson & Co., to A. W. Harrison of Philadelphia. Tbe defendants objected to other proof than tbe answers to tbe interrogatories. I overruled tbe objection, and tbe original orders were proved. Tbe orders were dated 20th December, 1856, and signed by A. M. Dodson & Co. Above tbe signatures were printed terms as follows: “Net cash, allowing usual time for arrival of goods; tbe draft for tbe amount is drawn on tbe day of shipment. Boxes and drayage free of cost. Freight by packet lines running direct from Philadelphia to prominent ports on tbe Atlantic and Gulf of Mexico, I-deduct from tbe invoice, and I insure to all such ports at my own cost. All subsequent freight and insurance by water or land, is at tbe cost of tbe purchaser. No package is permitted to leave tbe factory but in perfect order to transport safely to any part of tbe country. The goods become the property of the purchaser when they leave the manufactory, therefore, for all loss or damage by breakage or otherwise, not covered by insurance, and' for all delays in transportation, be must look to tbe transporters of tbe goods, who alone are legally responsible to tbe owner for prompt and safe delivery.” Below was tbe order given by A. M. Dodson & Co., in words as follows: “You will forward tbe above by steamer, to care railroad agent in Charleston, thence by railroad to Donaldsville, and draw for tbe amount of tbe bill at days from shipment of tbe goods, payable through. We will remit draft.”
    “Tbe defendants then offered witness, Wyatt Norwood, who stated that be was present at a conversation between an agent (as be was informed) of A. W. Harrison and A. M. Dodson, at the store of tbe latter, some time in January, 1857. That agent requested Dodson to order bill of goods, and said to bim, if tbe goods ordered did not suit, be could return tbem. Tbe agent bad witb bim papers witb printed lists of articles, similar to tbe orders offered by tbe plaintiff. That tbe articles' desired were marked, and tbe order signed by A. M. Dodson — tbe articles marked were tbe same as those in tbe account sued on. I held tbe testimony of witness Norwood to be incompetent, because of its tendency to contradict tbe written or printed agreement. Tbe answers to tbe interrogatories, so far as they were responsive, were received, and proved tbe ordering and receipt of .tbe goods charged. There was no proof of tbe return of tbe goods, and tbe original orders having been proved by other testimony, I decreed for tbe plaintiff tbe amount of bis account, after deducting tbe ten dollars and forty-eight cents, which bad been paid.”
    Tbe defendant appealed on tbe grounds:
    ' 1. Because, tbe plaintiff required tbe defendant to answer on oath certain interrogatories, and after using tbe information thus obtained, was allowed to offer other evidence of bis claim.
    2. Because, tbe answers to tbe interrogatories were read by tbe desire of tbe plaintiff’s counsel, and tbe plaintiff’s claim should have' been decided by tbe discovery thus obtained, and no other evidence.
    3. Because, tbe plaintiff failed to make out bis case, either by tbe answers to the interrogatories or by tbe other proof, which standing alone was sufficient.
    4. Because, tbe defendants sent back tbe articles according to tbe special agreement, made witb plaintiff’s agent, and should not have been required to pay for tbem.
    
      
      Copy Interrogatories.
    
    1. Examine the account hereto attached, and say whether or not the articles mentioned therein, were ordered by you, or by some one of you, for the firm of A. M. Dodson & Co., from plaintiff, Apollos W. Harrison ? If not all the articles in said' account, .please state what articles therein were ordered by yon, or some one of yon, from the said plaintiff?
    2. Did yon, or did you not, or did some one of you receive the articles mentioned in said account from plaintiff?
    
      Copy Answers.
    
    1. This defendant and Jane Kirkpatrick, widow, now Jane Taylor, were partners in merchandize, in January, 1857. This defendant did the whole business, and Mrs. Taylor knew nothing of ordering or buying goods. This defendant was urged, in January last, by the agent of A. W. Harrison, to order a bill of goods; and was promised and assured by the said agent that he might order a list of articles, and if they did not suit when they came, to box them up and send them back. This assurance and agreement can be proved. Hpon the faith of this agreement made by the agent of jilaintiff, [through whom alone this defendant knew Harrison,) this defendant did order, conditionally, the list of goods charged. When the goods came they did not suit; but as the box was opened, this'defendant took as many of them as amounted to ten dollars and forty-eight cents, and sent the remainder back as per agreement with the agent of Apollos W. Harrison, The ten dollars and forty-eight cents has been paid by the defendant, and he owes A. W. Harrison nothing, nor does the firm owe him anything.
    2. The articles were received, and most of them were sent back as before stated.
    
      
      McGowan, for apppellant,
    cited Hare on Discoy. 19 ; 2 Rich. 367; 7 Crancb, 69. The plaintiff having obtained and used a discovery, is restricted to that. Brown vs. Stroud, 8 Rich. 292. If other testimony was admissible, then the defendant’s answer and Norwood’s testimony prove the defendant’s case. 2 Bail. 392; McOaw vs. Blewett, 2 McO. Oh. 102; 4 Phil. Ev., by 0. & H. 600; 2 N. & McO. 455; 8 Wend 116; 2 Hill, 353 ; 3 St. & Port. 322.
    
      Livingston, contra,
    cited, 1 Strob. 333; Riley, 264 ; 2 Rich. 367; Walker vs. Berry, 8 Rich. 33; 2 Bail. 391.
   The opinion of the Court was delivered by

O’Neall, J

In this case, I think the plaintiff, after examining the defendant upon his whole case, had no right to introduce other testimony. The true rule is stated in Brown vs. Stroud, 8 Rich. 292. In that case it is stated: “when he” (the plaintiff) “desires the benefit of the defendant’s oath, and examines him by interrogatories, he stands as a complainant in equity; having sought and obtained, or failed to get a discovery, the defendant’s statement cannot be controverted.” For in such a case (a sum. pro.) the defendant may be examined, because the plaintiff chooses to say, I have no other proof. This makes the case exactly analogous to the bill for discovery, as ancillary to another suit.

There is no doubt about the rule in the process jurisdiction, that if the defendant’s answer charges him with a liability, he cannot discharge himself by his answer, as if he admits he purchased goods, he cannot say I paid for them. Walker vs. Berry, 8 Rich. 33, decided upon the authority of Clark vs. Meek, 2 Bail. 391.

But if, as here, many particulars enter into the answer to the interrogatory to show the liability, or non-liability of the defendant, then, I think, it does not fall Avithin the rule stated and tbe whole answer must be taken. It is true, tbe plaintiff may decline to use tbe answers, and resort to other proof.

A new trial is therefore ordered.

Wardlaw, Withers, Whitner, GIloyer and Munro, JJ., concurred.

New trial ordered.  