Model Mill Co. v. Webb ( 1913 )

After stating the case: The only question is, Was there any evidence to support the charge and the verdict? The City National Bank, it appears, mailed the letter with the draft and bill of lading to the defendant bank. This was evidence of its receipt by the (89) latter, and raised a rebuttable presumption of the fact to be submitted to the jury, along with any evidence in the case tending to show that it was or was not in fact received. This is said to be founded upon another presumption, that officers of the Postoffice Department will do their duty, or upon the better reason, the regularity and certainty with which, according to common experience, the mail is carried. It is, at least, evidence from which the jury may reasonably infer the fact that the mail matter was received in due course of transmission and delivery. 16 Cyc., 1065; Bragaw v. Supreme Lodge, 124 N.C. 154; Coile v.Commercial Travelers, 161 N.C. 104; Hollowell v. Insurance Co.,126 N.C. 398; Huntley v. Whittier, 105 Mass. 391; Starr v. Torrey,22 N.J.L. 190; Austin v. Howard, 69 N.Y. 571; Howard v. Daly, ibid., 362; Dana v. Kemble, 19 Pick., 112. This kind of remittance is according to the universal custom of banks in collecting drafts or other commercial papers. Farther or more certain proof of the receipt by the bank of the letter than is derived from the fact that it was properly mailed would be wholly unnecessary, always difficult, and often impossible, as suggested by Chief Justice Ames, for the Court, in Russell v. Buckley,4 R. I., 525 (70 Am. Dec., 167). If the law generally requires the best proof of which the particular fact in issue is susceptible, this is the best possible under the circumstances of this case. It is not conclusive. The contrary may be shown or may be inferred from all the testimony, but it is some evidence of the fact. "The burden of proving its receipt remains throughout upon the party who asserts it." Huntley v. Whittier, supra. Such a remittance, as is said in Hollowell v. Insurance Co., supra, is at the risk of the remitting bank, and if the letter was not actually received, the bank addressed is not liable. But this is not that question, but one merely of proof as to the receipt of the draft.

But defendant contends that there is no evidence that the letter inclosing the draft and bill of lading was properly addressed and stamped and deposited in the mails for transmission. The testimony is (90) that the clerk in the Johnson City Bank "mailed the letter to the American National Bank of Asheville," and "it was forwarded by the (former) bank to the American National Bank of Asheville." These are the expressions used by the witness Samuel T. Millard. When a person says that he "mailed" a letter to another, it is commonly understood that the letter was in a mailable condition, properly addressed to that other, and stamped. We would not speak of a blank envelope deposited in the postoffice, neither stamped nor addressed, as having been mailed; and when the witness said the letter was mailed to defendant bank, the jury could, at least, infer that he meant it was addressed and stamped and deposited in the postoffice as is usual, that is, in the ordinary way. U.S. v. Rapp, 30 Fed., 818. At page 822 will be found the expression, "This letter was mailed precisely like other letters," and the word "mailed" is several times used by the Court in the sense we have given to it. Matter, in order to be mailable, must be stamped and addressed; otherwise, it will not be transmitted. 2 U.S. Compiled Statutes, p. 3663, sec. 3896. Besides, defendant D. H. Webb testified that he lived in Asheville, N.C. and paid the draft and got the bill of lading; that he did not pay the Model Mill Company, but paid some one. The letter inclosing the draft and bill of lading must have been transmitted to Asheville, which is some evidence that it was stamped. It was not addressed to Webb, because he paid the draft to some one else, who had it. The bank at Asheville is the only other person or corporation at Asheville connected with the transaction by the evidence. The jury could draw these conclusions, and from them make the further deduction that the bank collected the draft.

The charge of the learned judge was clear and explicit, and submitted the question fairly to the jury. There was strong evidence that the defendant bank did not receive the paper or handle it, but that it was really addressed to the defendant D. H. Webb by mistake, and that he used the bill of lading attached to get the goods from the railroad company, as he could not say to whom he had paid the draft. But the jury, unfortunately for the defendant bank, have decided (91) otherwise, and we cannot revise their verdict. It may be a hard case, and if justice has miscarried, we can do nothing more than regret it. On the other side, it may be said that a most able and enlightened judge, profoundly imbued with a strong sense of justice and right, has heard the witnesses and seen the actual occurrences of the trial, and is, therefore, far more competent to judge of the correctness of the verdict than we are. We should, therefore, hesitate to disturb it, even if we had the power, but rather defer to his better judgment.

No error.

Cited: Trust Co. v. Bank, 166 N.C. 117; Lynch v. Johnson, 171 N.C. 625.