28 Ga. App. 376 | Ga. Ct. App. | 1922
Lead Opinion
1. A person wlio by the United States mail sends to another an offer or proposal .which, requires only the latter’s acceptance or confirmation to create a valid contract, and who says nothing as to how the answer of acceptance or confirmation shall be communicated, nor that it shall take effect only upon the actual receipt of the acceptance by the offerer, impliedly adopts the mails as his agency, and authorizes its use in the transmission to him of an acceptance. Where the recipient of the offer thus duly deposits his acceptance in the mail, in an envelope properly stamped and addressed to the offerer, the contract thereupon becomes complete and binding, without reference to whether or not the acceptance actually reaches the addressee. Civil Code (1910), § 4231; Levy v. Cohen, 4 Ga. 1 (2) ; Bryant v. Booze, 55 Ga. 438 (5); 6 Ruling Case Law, 610-613; 13 Corpus Juris, 300, 301, and cases cited.
2. The rule that, where a letter is written, properly addressed, stamped, and mailed, the presumption arising that it was received by the addressee is merely prima facie, and may be successfully rebutted by uncontradieted evidence of the addressee that he did not in fact receive it (.Ramillón v. Stewart, 108 Ga. 472, 476, 34 S. E. 123; Cassel v. Randall, 10 Ga. App. 587, 73 S. E. 858; Strauss v. Pearlman, 15 Ga. App. 86, 82 S. E. 578; Parker v. Southern Ruralist Co., 15 Ga. App. 334 (2), 83 S.
E. 158), has no application in a case such as here stated, except in so far as the addressee’s evidence, that he did not receive the letter of acceptance may be considered by the jury along with the other facts and circumstances, as negativing the other party’s evidence that it had been mailed. This in effect was what the court charged. Immediately after, and in the same connection with the excerpt complained of, wherein the judge charged that if the acceptance was properly addressed, stamped, and mailed, the presumption of law is that the addressee would receive it, he proceeded to make clear that the real question was not whether the acceptance was actually received, but whether it was thus addressed, stamped, and deposited in the mail, by informing the jury that if it was not received, “then you can take that, in connection with all the facts and circumstances, in determining whether or not this acceptance in the part of the plaintiff was ever mailed in the manner in which I have designated to you.”
Judgment affirmed.
Rehearing
ON -MOTION FOR REHEARING.
In the 2d division of the syllabus it is held that “ the addressee’s evidence that he did not receive the letter of acceptance may be considered by the jury along with the other facts and circumstances, as negativing the other party’s evidence that it had been mailed.” It is contended by plaintiffs 'in error that “there were in the evidence in the cause no other facts and circumstances tending to negative the evidence of Bowntree that the letter in question was mailed,” and that, therefore, the charge of the court (which in effect was as stated in the syllabus) was error, and the evidence demanded a verdict for the plaintiffs. Their argument is, that “ where a sender testifies that he properly mailed a letter to the addressee, and the addressee testifies that he did not receive it, then the presumption as to the regularity of the mails, which would call for the conclusion that the letter was duly - received, must yield to the presumption that witnesses speak the truth, and the only conclusion admissible is that the letter was lost in the mails,” there being no facts and circumstances to corroborate the presumption that the letter was received, or to discredit the testimony that it was not received.
In Parker v. Southern Ruralist Co., supra, it was held: “ Where the evidence shows that a letter was written and duly mailed, proper
In such a case, the presumption that the properly mailed leter reached the addressee in due course “rests upon the inference, supportéd by experience, that the postal authorities, as the governmental agency for delivering mail matter, will perform their duty.” In other words, there is a presumption arising both from the fact that the mails are an official agency of the government, and from the daily facts of common experience, that properly mailed and addressed letters are not lost in the mails. This presumption comes to the aid of the sender’s positive evidence as to the mailing of the letter, and authorizes, in the absence of other proof, a conclusion that it was actually received by the addressee. But where the addressee swears positively that he did not receive the letter, and there is no aliunde proof as. to such actual receipt, the presumptive evidence yields to the positive, and the jury must find in favor of the addressee. Whether, in a case where the question is not whether the letter was received, but, as in the instant case, whether or not it was mailed, the presumption of safe delivery would so aid the positive testimony of the addressee, that he did not receive the letter, as could permit such testimony, without any
Motion for rehearing denied.