22 Ga. App. 492 | Ga. Ct. App. | 1918
As we view this case, its adjudication turns upon the question whether or not three named guarantors were released from their obligations as such because one of them wrote a letter addressed and mailed to the creditor, withdrawing from the guaranty. It is uncontradicted in the record that the guarantors entered into a written contract by which they undertook to guarantee the account of L. D. Moore. Subsequently Moore died a bankrupt, leaving no estate, and was at that time indebted to the plaintiff in the sum of $546.40. Suit on the contract of guaranty was thereafter brought against the three guarantors; and the sole defense pleaded was that inasmuch as one of them wrote a letter to the plaintiff, withdrawing from the guaranty, they were all released. The testimony adduced was that this letter was writteA, addressed, and mailed. However the evidence was entirely silent
It is the settled rule in this State that before the presumption of delivery or receipt of a letter arises, it must appear that it was properly addressed, duly stamped, and mailed. All of these facts must be affirmatively shown by the party asserting the mailing of the letter. In the case of National Building Asso. v. Quin, 120 Ga. 358 (47 S. E. 962), it was held that evidence that a letter was written to a given person does not authorize the presumption that he received it, unless the evidence shows also that the latter was properly addressed, duly stamped, and mailed. The Supreme Court approved this ruling in Burch v. Americus Grocery Co., 125 Ga. 153 (3), 158 (53 S. E. 1008), and in Bankers Mutual Casualty Co. v. Peoples Bank, 127 Ga. 326 (2), 327 (56 S. E. 429); and the Court of Appeals followed these decisions in the late case of Barnett v. Floyd County Nova Kola Bottling Co., 18 Ga. App. 413 (89 S. E. 490). See also, in this connection, 1 Gr. Ev. 137, note p; 35 Albany Law Journal, 82; Equitable Life Assur. Soc. v. Frommhold, 75 Ill. App. 43; Best v. Berman Ins. Co., 68 Mo. App. 598; 2 Whart. Ev. § 1323; Huntley v. Whittier, 105 Mass. 391 (7 Am. R. 536); Briggs v. Hervey, 130 Mass. 187.
Able counsel for the defendants in error, apparently recognizing that it is no longer an open question in this State that before the presumption arises that a letter has been received by ah alleged addressee, the prerequisite facts that the letter was properly addressed, duly stamped, and mailed must be affirmatively shown by the sender, argued with much force that the word “mailed,” when applied to a letter, means that it was properly prepared for transmission in the- due course of mail, and was placed in the custody of the officer charged with the duty uf forwarding the mail; and that since there was uncontradicted' testimony^ that the letter in the instant case had been “mailed” to the plaintiff, it was sufficient evidence that it had been properly directed, stamped, and delivered to the officials of the postal department for proper transmission; and that therefore the presumption arose that the plaintiff, to whom it was addressed, received it. In support of this contention numerous foreign authorities are cited, which we have carefully examined. However, the Supreme Court of this State in the
The effect of what is said above is that unless it appears'affirmatively that a letter has been properly addressed, duly stamped, and deposited in the mail, no presumption of the receipt of the letter will arise; and there being in the present case, no evidence whatever that the letter in question was stamped, there was ;no presumption that it was ever received. On the other hand, there was direct uncontradicted evidence that the plaintiff company did not receive it. The verdict in favor of the defendants is therefore without evi- . dence to support it, and the judgment overruling the plaintiff’s motion for a new trial is for this reason reversed.
Judgment reversed.