Strauss Bros. v. Pearlman, 15 Ga. App. 86

Strauss Bros. v. Pearlman

15 Ga. App. 86

Ga. Ct. App.

1914

Check Treatment

Russell, C. J.

Thе only question raised in the case is whether the positive evidence of each and all of the partnеrs composing the partnership of Strauss Brothers (the plaintiffs), to the effect that the copartnership ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍hаd never received a letter alleged to have been written to them by the defendant, demanded a finding that nо such letter was in fact received by them, and required a verdict in favor *87of the plaintiffs, instead of the verdict rendered, which was in favor of the defendant. It is uncontradieted in the record that on August 30, 1908, Pearlman entered into a written contract by which he undertook to guarantee the accounts of Kline Brothers up to the amount of $850. Subsequently Kline Brothers were adjudicated bankrupts, being at that time indebted to Strauss Brothers in the sum of $1,235.88, upon an open аccount' for goods purchased in 1912. Suit on the contract of guaranty was brought against Pearl-man (with copy оf account against Kline Brothers attached) for $850, the amount specified in the contract. Among other defenses Pearlman pleaded that on or about September 1, 1908, he wrote to Strauss Brothers a letter revоking the guaranty except as to the opening bill of Kline Brothers, amounting to $850, and that any goods sold to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Kline Brothеrs after September 1, 1908, were sold without a guaranty on his part and without his knowledge or consent; that this letter was properly addressed, that proper postage was placed thereon, and that the letter was deposited in the post-office at Americus, Georgia. Each member of the plaintiff firm testified that no such lettеr was ever received by them or either of them; and A. E. Wise, manager of the defendant’s business, testified that he wrote the letter for the defendant to Strauss Brothers, as set out in the plea, and that it was properly addressed аnd mailed. If there had been no further testimony, it seems that the presumption that a letter properly addressed, sufficiently stamped, and duly mailed was duly received would be rebutted by positive evidence that the letter was in fact never received by the addressee. Schatz v. Jordan, 141 U. S. 213 (4), and citátions, p. 219 (11 Sup. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ct. 906, 35 L. ed. 705); Rosenthal v. Walker, 111 U. S. 185 (3) (4 Sup. Ct. 382, 38 L. ed. 395); Gassell v. Randall, 10 Ga. App. 587 (73 S. E. 858). This rule is reasonable, bеcause the sender selects the post as his agency by which the letter is to be conveyed, and he must take ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the chances of miscarriage, and suffer, if any one must suffer, from the default of the agency which he himself has selected. Broussard v. Brandenberg, 8 Ga. App. 795 (70 S. E. 159); Griffith v. Mitchell, 117 Ga. 479 (43 S. E. 742). The presumption that a letter properly addressed, stamped, and mailed has been delivered to the addressee rests upon the inference, supported by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍experience, that the postal authorities, as the governmental agency for delivering mail matter, will perform their duty; and, of course, if it is *88shown by pоsitive evidence that the duty was not performed, the presumption is rebutted. In the. present case, howevеr, the defendant’s plea was supported, not alone by the presumption, but also by proof of circumstances which authorized the conclusion that Strauss Brothers did in fact receive the letter. In the first place, Wisе testified that upon the left-hand corner of the envelope of the letter was a request for its return to Pеarlman in five days, if not delivered, and that it was never returned. The same witness testified that long after the letter was writtеn and mailed, Strauss Brothers wrote a letter to Pearlman inquiring whether Kline Brothers were safe. Another circumstanсe which to some extent corroborates the defendant’s contention that Strauss Brothers received his letter annulling the continuing guaranty he gave at first is the fact that it is undisputed that Pearlman guaranteed the accоunt of Kline Brothers in consideration of a commission of 3 per cent, upon Kline Brothers’ bills, and Strauss Brothers, aрparently of their own motion, paid this 3 per cent, to Pearlman upon the first bill (which amounted to $821), but, although it appears they subsequently sold Kline Brothers a number of bills of goods, it does , not appear that on any of the subsеquent sales they paid or offered to pay Pearlman any further commission. In view of these circumstances, which support the presumption arising from the mailing of the letter, we think the jury were authorized to find that Strauss Brothers did in fact receive the letter by which the guaranty was unequivocally withdrawn as to any accounts subsequent to the bill fоr goods already sold to Kline Brothers. And, of course, if Strauss Brothers received this letter, the sales made by them tо Kline Brothers after its receipt imposed no liability upon Pearlman. It also appears that Strauss Brothers, before the filing of this suit, had proved their whole claim against Kline Brothers in bankruptcy, and had received a dividеnd; and while each of the several members of the partnership of Strauss Brothers swore that he did not receive the letter about which Pearlman and Wise testified, the jury may have concluded, from all the circumstancеs, that it was not impossible that some agent of the partnership, other than the individuals actually composing it, received the letter, since there were circumstances which indicate that its contents were communiсated and acted upon. As we have endeavored to make clear in the headnotes, the issue presented was clearly one of fact, and the jury resolved this issue in *89favor of the defendant. There is no complaint that any error of law was committed upon the trial, and, since the verdict was supported by some evidence and was approved by the trial judge, this court is without jurisdiction to award another trial.

Judgment affirmed.

Roan, J., absent.