Calkins v. Vaughan

The justification of the general affirmative charge for the plaintiff depended, as stated in the foregoing opinion, upon the proposition, there affirmed, that there was nothing in the evidence in conflict with the testimony of plaintiff's attorney, Olson, that he mailed to the defendant, Vaughan, on April 27, 1923, a notice of the dishonor of the note by its maker, Stanley, by nonpayment at maturity, with a demand upon Vaughan for its payment. In that view of the evidence the court, as we are now satisfied, gave an unwarranted effect to section 9128 of the Code, which provides that a seasonable mailing of the notice of dishonor is sufficient, notwithstanding its miscarriage in the mails. The statute does not foreclose the issue of fact as to the mailing of the notice, and, in view of the presumption that every letter, properly addressed and stamped, is duly transported and delivered to the addressee, the addressee's testimony that he never received it is some evidence that it was never mailed as claimed, and leaves the issue for the jury to determine. As declared by the Supreme Court of New Hampshire:

"The presumption arising from the known regularity of the United States mail service is as available for the supposed receiver of a letter as for the alleged sender thereof. If proof that a properly addressed and stamped letter was posted gives rise to a presumption that it was received in due course, * * * so proof that no letter was received warrants a finding that it was never posted. If this plaintiff's testimony denying the receipt of the letter was believed, the jury would be warranted in going further and finding that the letter was not posted." Wilson v. Frankfort, etc., Co., 77 N.H. 344,91 A. 913; 22 Corp. Jur. 102, § 9.

The question as to the fact of posting the letter, its receipt being denied by the addressee, was there held to have been properly submitted to the jury; and, on the same denial by the defendant, Vaughan, in this case, we are constrained to hold — the entire bench now sitting — that the general affirmative charge for the plaintiff was improperly given, and that the trial court properly set the judgment for plaintiff aside and ordered a new trial.

This conclusion is greatly strengthened by the testimony of B. F. Noble, receiver for the bankrupt bank, and of the defendant Stanley, respectively, that neither of them received the letter which Olson testified he wrote and posted to each severally, properly stamped and addressed, at or about the time he, as alleged, wrote and posted the letter to Vaughan — pertinent contradictions of Olson, to which the jury might give substantial weight.

The appellee, it may be suggested, was not entitled, as a matter of right, to make application for a rehearing, not having filed any brief on the original submission. However, when this court is clearly convinced of its own error, it may and should, of its own motion, restore a cause to the docket and reconsider its rulings on their merits. It results that the judgment of reversal will be set aside, and a judgment will be here rendered, affirming the judgment of the circuit court in the premises.

Rehearing granted, judgment of reversal set aside, and judgment affirmed.

All the Justices concur.