PRITCHETT vs. MUNROE, 22 Ala. 501

GOLDTHWAITE, «L On an examination of the evidence which was excluded by the court on the trial below, we think an error was committed in the rejection of any portion of the answer made by the defendant to the second interrogatory. The affidavit, which the record shows was offered in evidence by the plaintiff, alleges that the defendant, in reply to a certain proposition made him by the other party, refused to have the land surveyed, and goes on to state what was said by him at the time of such refusal.

The answer admits such refusal, but states a qualification under which it was made, and denies that it was accompanied bj the language stated in the affidavit. A party is not allowed to garble an admission, or to call for a part of a transaction only. If a statement or admission is inquired in relation to, the qualification under which it was made thereby becomes evidence, and the whole must be taken together.

If a party calls only for that portion which makes in his favor, he cannot thereby exclude the other portion, which may operate against him; and an answer to a bill of discovery proves no exception to this well recognized principle. When offered by the opposite party, it becomes evidence, so far as it is responsive to the call for discovery, or is connected necessarily with the responsive matter. Co. & Hill’s Notes to Phil. Ev. 927.

If it calls for an admission, the defendant has the right to state all that was said at the time in relation to the same subject; for unless the whole is received and considered, the true meaning of the part which is good evidence against him cannot be ascertained. For similar reasons, if a discovery is sought as to

an act, the party may legitimately state in his answer whatever would be part of the res gestos. Apply these rules to the answer in question, and there is no difficulty in determining that every portion of it is responsive to the interrogatory to which it purports to be a reply.

In relation to the parts of the other answers which were excluded by the court, it is insisted on the part of the plaintiff in error, that even if the matter was irrelevant or not called for, such portions should have been excepted to and suppressed; and that failing to pursue this course, if the opposite party offered any portion of the answers, he thereby made the whole testimony. This court has already decided, that where interrogatories are filed to obtain a discovery, the answers in relation to distinct facts not inquired of, are not evidence as to such facts, for the party answering, (Lake v.

Gilchrist, 7 Ala. 955;) and the same rule must of course apply to irrelevant matter. The question, therefore, which is presented in this aspect of the case, is simply one of practice, as to the manner in which an objection is tobe taken to matter which is not evidence, which is contained in answers to interrogatories filed under the statute. Clay’s Dig. 341 § 160.

The object of the legislature was, unquestionably, to give a more expeditious and less expensive remedy than was afforded by the proceeding in chancery; and while the principles which apply to the discovery must necessarily be the same as those which prevail in chancery, the rules of practice should be in analogy with those which govern proceedings of a similar character in courts of law.

The evidence of the parties is obtained by interrogatories, and when taken, if for no other reasons than to preserve uniformity in our system, it should be governed, so far as the mode in which objections are to be made to the testimony is concerned, by the same rules which are applicable to the testimony of other witnesses taken by interrogatories. It will not be questioned, that, if the answer of a witness contains matter which is not evidence, the objection may be made on the trial, (Wall v. Williams, 11 Ala. 326;) and this without reference to the medium through which it is offered. Ib. 834.

If this be the correct rule in relation to the answers of a witness in courts of law upon interrogatories, why should not the same rule apply to a party who gives his evidence in the same court upon interrogatories? The testimony was offered by the defendant, and that portion of it which was illegal was properly excluded. We may add, that we consider all that portion of the evidence which we are now considering, and which was excluded by the court, as not responsive to the interrogatories, with the exception of certain portions of the answer to the fourth interrogatory.

The portion of the last answer to which we refer, is that part which states the representations made by the defendant in relation to the south boundary of the land, and which are explanatory of the same; and also that portion of the same answer, which alleges that he made no further representations than those stated in the answer, in relation to the precise boundary of the land, or as to what amount of territory was embraced within the lines; and this we consider upon a fair construction as responsive to the interrogatory referred to.

But as the other parts of the same answer which were excluded by the court were not responsive, and the motion on the part of the defendant was to offer the whole in evidence, there was no error in overruling it, with reference to this answer. It is not for the court, but for the party offering the testimony, to separate the legal from the illegal; and if be fails to do this, it is not error for tbe court to reject tbe whole. West v. Kelly, 19 Ala. 353.

Neither was there any error in refusing to give the first charge which was asked; which was, in effect, that if the defendant, at the time of making the contract, told the plaintiff all that he knew, and only what he knew, no recovery could be had.

The evidence upon which this charge was based, shows, that if any misrepresentations were made, it was before the contract was consummated; and the rule is, that if the vendor, during the treaty or pending the negotiation for the sale, makes a fraudulent representation in relation to a material fact, and one on which the other party had the right to rely, and the purchaser is thereby misled to his prejudice, the seller is responsible in damages. Neville v. Wilkerson, 1 Bro. Ch. Rep. 546; Stor. Eq. § 195-197; Monroe v. Pritchett, 16 Ala. 785.

It is true, that in most cases, if the vendor, at the time of making the contract, tells all that he knew in relation to the subject matter of the sale, it would be impossible that the purchaser should be decieved or misled; and of course, in such a case, no recovery could be had. But it does not follow, that in every case where a false representation has been made during the treaty, its effect is done away by the subsequent disclosure of all which the party who made it may know in relation to the subject of the bargain.

The purchaser may still be misled by the false representation previously made; and whether he is so or not — whether the subsequent disclosure relieves his mind from the effect of the misrepresentation — is properly a question for the jury to de. termine.

Suppose, by way of illustration, that the vendor made a fraudulent representation during the negotiation, in relation to one of the lines which he did not know, would it be pretended that a statement made by him at the time the contract of purchase was entered into, that he knew the other lines, and that they were those which he had' }Dointed out, would relieve him from the consequences of the previous fraud, if the other party had acted upon and was misled by it?

The second charge requested on the part of the plaintiff in error was also properly refused, as from the bill of exceptions it appears that evidence was before the jury of representations made by the defendant below, in relation to the directions of one of the lines of the land, other than those which are contained in the instructions refused.

We refer to the representations made by the defendant as to the blazed line marked by Phillips, and as these representations were admit, ted in the answer of the defendant" to the interrogatories filed, they must not only be regarded as evidence, but as amounting to full proof that such representations were made. Whether they were true or false, whether they were relied upon by the purchaser in concluding the bargain, or whether he was misled by them, is not the question.

It was sufficient to authorize the refusal, that it appears from the record that the fact that other representations were made was legally established. The effect of the instructions prayed for would have misled the jury, by creating the impression that they would be authorized to reject the representations referred to, which, as we have already said, were fully proved, and which were not incorporated in the charge. Carlisle v. Hill, 16 Ala. 398.

In relation to the last charge asked, it is only necessary to observe, that it assumes that whatever may have been the fraudulent representations made by the vendor in relation to the lines of the land, he was absolved from all responsibility therefor, if the purchaser knew that the land had not been surveyed. We cannot sanction the proposition thus broadly. The fraudulent representations may be made under such circumstances as to put the'purchaser off his guard, as to induce him to forbear from investigation, when otherwise he would have investigated.

There may be cases where the parties deal at arm’s length, where the one possesses no means of information superior to the other, or has no right to repose confidence, that a misrepresentation will not even avoid the contract. The purchaser in such a case would be required to resort to the ordinary and accessible means of information. 2 Kent Com. 484,4th Ed. The charge as asked would take the case from the jury, and refer it to the court to determine that the evidence made out a case of the character of which we have just spoken. There was no error in the refusal.

For the error before referred to, the judgment must be reversed, and the cause remanded.