148 So. 657 | La. | 1933
These appeals come up from two separate judgments rendered in two suits filed by the *391 same plaintiff, Stewart Brothers, against the defendants, who are sisters. The suits were consolidated in the court below for the purpose of trial. In the first, judgment was rendered in favor of plaintiff, and the defendant appeals; in the second, judgment was rendered in favor of defendant, and plaintiff appeals.
Both suits are based on alleged balances due as the result of trading in securities for account of Mrs. Gray, and in securities and commodities for account of Miss Brewer.
It is true that plaintiff has not shown that each particular confirmation and monthly statement was actually put into the post office and duly stamped before being put therein, and the rule seems to be, as to particular and isolated mail items, that without proof of actual deposit in the mail and prepayment of postage, no presumption of delivery arises where the addressee denies the receipt of it. But this rule can have no possible application to a long series of correspondence by mail where such correspondence is handled in the usual course of business along with a mass of other correspondence which reaches its destination in due course. Hence, the testimony of these defendants that after a fixed date (January 1, 1931) they received no further confirmations or statements is wholly without weight with *393 us; especially as these defendants were furnished with additional statements before their accounts were finally closed, which additional statements were subject of discussion between the parties, even in the presence of defendants' attorneys at the time, and were not objected to or even questioned, except as to the aforesaid item of $1,335 and another item of $1,670 to which we will presently refer; and in fact, except as to these two items, plaintiff's claims were practically undisputed until this suit was brought and the answers filed. Indeed, the evidence shows that efforts were even being made by defendants to settle the accounts by giving security therefor, wherein the only difference between the parties seems to have been whether the two accounts were separate or were a joint account for which both defendants were equally liable; it being finally conceded by plaintiff, however, that the two accounts were separate and distinct and not one joint account for both parties.
This sum of $1,670 is for a check given by Mrs. Gray on December 31, 1930, to be placed to the credit of her account, but which Creekmore, under his real or assumed authority to trade for these defendants at his discretion, placed to the credit of Miss Brewer's account, the weakest of the two accounts, as if the authority to trade for these two defendants at his discretion authorized him also to transfer credits from one account to the other as he pleased, which of course was not so.
The failure to credit her account with the amount of this check was not observed by Mrs. Gray until her account was finally closed, whereupon she claimed credit for said sum; and in our opinion she is entitled to such credit. The burden of proof was on plaintiff to show that the transfer of this credit from Mrs. Gray's account to Miss Brewer's account was authorized by Mrs. Gray and plaintiff has not sustained that burden. The judgment against her should therefore be credited with this amount with legal interest from the date in which said payment was made, to wit, December 31, 1930.
It is further ordered that the judgment herein rendered by the court below in favor of the defendant Mrs. Evelyn B. Gray and against the plaintiff, Stewart Brothers, be reversed; and it is now ordered that there be judgment in favor of plaintiff Stewart Brothers and against the defendant Mrs. Evelyn B. Gray for the full sum of $2,485.07 with legal interest from January 1, 1932, subject however to the credit of $1,670 with legal interest from December 31, 1930.
It is further ordered that all costs in both courts be paid by the two defendants, Lily C. Brewer and Evelyn B. Gray, in equal portions; that is, one-half each.
ODOM, J., dissents.