Eveland v. Lawson , 240 Mass. 99 ( 1921 )

Crosby, J.

This is an action of contract brought by a mining engineer to recover a balance alleged to be due for services in investigating for the defendant certain mining properties in South America. The defendant testified that he authorized no services except an original examination of the Gardner-White claim, so called, and that he at no time ratified the performance of additional services for him by the plaintiff. The issue at the trial was whether the defendant owed the plaintiff for services and expenses in connection with the investigation of properties other than the Gardner-White claim.

The exceptions recite that “There was evidence from which the jury could have found either way on the issues of original employment for services other than the Gardner-White claim or subsequent ratification.”

The questions raised by the bill of exceptions are whether the judge erred in admitting in evidence two letters, Exhibits 82 and 83. Exhibit 82 was a carbon copy of a letter dated April 3, 1917, the original of which the plaintiff testified he mailed to the defendant on the day of its date, directed to “ Mr. Thomas W. Lawson, Boston, Mass.” The record shows that the plaintiff’s counsel had notified the defendant to produce all letters received by him from the plaintiff. At the trial the defendant stated that he had no letter dated April 3, 1917; he objected to the admission of the copy, and said that there was no evidence that it had been received. In his brief he contends that there was no evidence whatever of how the letter was addressed or of the payment of the postage. The defendant is described in the writ as “having a usual place of business in Boston,” and there is no evidence to that that recital was not in accordance with the fact. The objection that the postage was not prepaid was not specifically raised at the trial and there was no evidence that the letter was not received by the defendant. In these circumstances it was properly admitted if it was otherwise competent. The depositing of a letter in the post office, postage prepaid, properly addressed to a person at his place of business or residence, is prima facie evidence that it was received in the ordinary course of mails. Huntley v. Whittier, 105 Mass. 391. McDowell v. Ætna Ins. Co. 164 Mass. 444. Tobin v. Taintor, 229 Mass. 174.

We are of opinion that the letter cannot be said as matter of law to have been improperly admitted. The correspondence between the parties and between the plaintiff and the defendant’s son (who could have been found to have acted as his father’s agent) consisting of letters and cablegrams was voluminous and covered a period of about two years; more than eighty were put in evidence without objection, so far as appears; the letters in question were a part of mutual correspondence, none of which is before us except Exhibits 82 and 83. If all the correspondence which was before the trial judge were presented for our inspection, it might clearly appear that the facts stated in these letters were material and competent; in the absence of any other correspondence we cannot say that their admission was error, as the burden rested on the defendant to show such error. The case at bar is distinguishable in its facts from those- in Kumin v. Fine, 229 Mass. 75, Sargent v. Lord, 232 Mass. 585, and the other cases relied on by the defendant.

It is also the contention of the defendant that the statements in the letter were self-serving and for that reason inadmissible. Apart from the question whether all the statements in the letter, Exhibit 82, were admissible, that part of it in which the plaintiff requested to be informed by the defendant as to whether he desired the plaintiff to continue in his employ was competent. If the defendant believed that the admission of the letter should have been so limited, it was his duty so to state to the trial judge when it was offered. It follows that the exception to the admission of Exhibit 82 must be overruled.

The letter, Exhibit 83, dated April 5, 1917, was sent in response to a request from the defendant for a further report upon mines examined by the plaintiff in Chile. A report as requested by the defendant was enclosed in the letter. The exception to its admission cannot be sustained.

Exceptions overruled.