General Acc., Fire & Life Assur. Corp. v. Pacific Coast Casualty Co.
247 F. 416
| 2d Cir. | 1917
LEARNED HAND, District Judge

(after stating, the facts as above). [1] The correctness of the ruling below turns upon whether it was a part of the plaintiff’s case to show that it had not received the summonses or whether that burden lay on the defendant. If it was upon the plaintiff, the evidence does not prove that it did not receive the summonses; but if it lay with the defendant, it, too, has failed, as we shall show later. The general rule reenforced by later decisions is, of course, to construe all performance due from the plaintiff and prior in time to the defendant’s performance as a condition precedent to the latter’s obligation. However, the plaintiff’s performance here was to send on to the defendant all notices or process which it might receive. That obligation was contingent upon its own receipt of such documents, and in the absence of their receipt it was under no obligation, and there was no condition precedent. The plaintiff does not therefore approach the cause suing upon a conditional obligation; on the contrary, the defendant’s obligation is prima facie absolute. It is only when the plaintiff’s cross obligation, itself conditional, has been shown, to be absolute that its performance can become a condition upon the defendant’s obligation.

Hence the proper course of proof is for the plaintiff to prove the *419contract and the breach and rest. Then the defendant must prove that the condition upon the plaintiff’s obligation arose so that it became absolute. We need not go further and hold that the plaintiff must then prove its performance in order to avoid the effect of the condition upon the defendant’s obligation. It is enough here that there was no unconditional condition upon the defendant’s obligation.

[2] Nor is the point good that the recovery of the plaintiff in the action of Schlessinger v. Pacific Coast Insurance Company presupposed that the defendant there had received the summonses in the actions of the tenant against Schlessinger. How that point was dealt with on that trial we do not know, even supposing, and we do not mean so to hold, that every fact necessary to a recovery there is established by estoppel against the plaintiff here. We need not assume, however, that in that case Schlessinger proved the receipt by the. plaintiff here of the summonses.

[3-5] We therefore come to the question whether the defendant-showed that the plaintiff had received the summonses. The only evidence is that, when Schlessinger sent the letter, the office of the plaintiff had been abandoned. Tuttle says that he does not know the exact date, but he thinks it was before November 23, 1912. This disposes of the presumption arising from the posting of the letter.

'fhe only thing that remains is whether Coughlan, who in some way received the summonses, was then authorized to receive them by the plaintiff. Of course, as a member of the firm of Tuttle & Coughlan, even if it had not then been dissolved, he would not have been so authorized. These gentlemen were merely attorneys at law who were particularly retained for each case.

It seems to'us that the sole ground for assuming that Coughlan was so authorized appears in the passage recited above in the statement of facts. In fact, the two orders which Tuttle speaks of may have been actually signed by the plaintiff, and Coughlan may have got the summonses as agent for the plaintiff, but we have no proof of it. Assuming that the proof, which was admitted without objection, stands for what it says, it can hardly serve in place of proof that the orders emanated from the plaintiff. It is perfectly clear that the defendant did not so regard it. Thus in the colloquy between the court and Mr. McDonnell the court said:

‘•Yea have not here any prooí that instructions were given to the post office authorities to forward mail.”

He answered:

“No; hut I have proof here that I mailed a letter to your last-known address.”

We think 1liat the defendant failed to show that the plaintiff ever received the summonses, and that the direction of a verdict for the plaintiff was right. None of the exceptions to the exclusion of evidence seem to us to affect the result. Without the necessary keystone to the defense, nothing could support it.

[6] The proof as to the amount of the verdict was vague. All that the defendant admitted was that the plaintiff had paid the judgment. *420We cannot find any proof of the amount of the plaintiff’s expenses in defending the Schlessinger action, and we do not think the admission covered it. For this reason the plaintiff must abate from the judgment $106.68, with interest, or the judgment must be reversed. If it does, judgment affirmed, with costs.