Dunn v. Goldman

• Decision Date: 30 September 1933
• Docket Number: No. 416.,416.
• Citation: 168 A. 299
• Parties: DUNN et al. v. GOLDMAN et al.
• Court: New Jersey Supreme Court

168 A. 299

DUNN et al.

v. GOLDMAN et al.

No. 416.

Supreme Court of New Jersey.

Sept. 30, 1933.

Syllabus by the Court.

1. A presumption arising under the law is not evidence; it is merely a rule concerning evidence.

2. The value of evidence necessary to meet a presumption is entirely in the hands of the trial court.

3. A presumption arising under the law when met by uncontradicted proof ceases to be a factor in the case.

4. The mere return by mail of a contract of guarantee with the purported signature of the guarantor affixed thereto, when proven by uncontradicted testimony not to be the real signature of the guarantor, does not relieve the plaintiff of establishing that the defendant, guarantor, signed or had some one sign for him the guarantee sued upon. Leunis Co. v. Singer, 102 N. J. Law, 68, 130 A. 457, distinguished.

Appeal from First District Court of Jersey City.

Action by A. J. Dunn and Abraham Friedman, partners trading as Dunn & Friedman, against Samuel Goldman and another. From a judgment for plaintiffs, the named defendant appeals.

Reversed.

Argued May term, 1933, before PARKER and PERSKIE, JJ.

Wallace P. Berkowitz, of Jersey City, for appellant.

Charles C. Colgan, of Jersey City, for appellees.

PERSKIE, Justice.

This appeal brings up for review a judgment of the First district court of Jersey City in favor of the plaintiffs-appellees, called hereinafter the plaintiffs, and against the defendant-appellant, called hereinafter the defendant, in the sum of $289.64.

The facts are as follows: A. Goldman & Co. of Jersey City made application to Dunn & Friedman, merchants, of New York City, for a line of credit. This was refused unless the account would be guaranteed. The son, Al. Goldman, suggested the name of his father, S. Goldman, who resided at 50 Jackson avenue, Jersey City, N. J. Whereupon, on June 29, 1931, plaintiffs mailed to the defendant at his home address aforesaid a form of guarantee for all merchandise that might be shipped to A. Goldman & Co. to the amount of $500. Plaintiffs subsequently received this guarantee through the mail, and later the son, Al. Goldman, while at their place of business in New York City, witnessed the guarantee and stated that the signature of "S. Goldman" was that of his father. On suit against the guarantor, S. Goldman testified that the signature was not his; that he did not authorize his son to sign it, nor did he ratify it. Apart from the mailing and the return by mail of the paper writing, the guarantee, the evidence is plenary that the purported signature of the guarantor was not in fact the genuine signature of "S. Goldman."

Motions for nonsuit and for a directed verdict were made for the defendant but were denied.

The plaintiff in support of their judgment rely on the case of Leunis Co. v. Singer, 102 N. J. Law, 68, 130 A. 457, decided by Mr. Justice Black, the syllabus of which is stated as follows: "A letter, received in due course of mail, apparently in response to a letter sent by the receiver, is presumed, in the absence of any showing to the contrary, to be the letter of the person or corporation whose name is signed to it. It is admissible in evidence without proof of the defendant's handwriting, being an exception to the rule requiring proof of handwriting."

The application of the principle of law enunciated in the case of Leunis Co. v. Singer, supra, to the instant case depends upon the probative force or value of a legal presumption arising under the law. More succinctly stated, is a presumption arising under the law, evidence, or is it merely a rule concerning evidence? The authorities are not in accord.

In the case of Alpine Forwarding Co. v. Pennsylvania Railroad Co., 60 F.(2d) 734 (C. C. A. 2d, 1932) the bailor of a barge raised the presumption of his bailee's fault by showing that the barge was returned in a damaged condition. The defendant's attempt to prove due care consisted in vague and inconclusive testimony. The Circuit Court of Appeals of the Second Circuit, considering this an inadequate satisfaction of the defendant's burden, held that it was error not to have directed a verdict for the plaintiff; but since the jury has rendered the same verdict the error was not prejudicial. In the opinion, Judge Learned Hand took the view that the valuation of the evidence necessary to meet a presumption is entirely in the hands of the trial judge. Hence, if it be insufficient there must be a directed verdict for the plaintiff; if sufficient, the presumption is destroyed and the defendant has succeeded in getting back to the jury; if positive and uncontradicted, a directed verdict for the defendant is warranted. This view is in harmony with the Rhode Island decision of Mclver v. Schwartz, 50 R. I. 68, 145 A. 101, 102, which holds that a presumption is not evidence, and in the face of testimony to the contrary cannot go to the jury. The court said: "Had the defendant's testimony been entirely reasonable and consistent, he would have been entitled to a direction of a verdict in his favor."

But because the testimony was not believed by the trial court, the appellate court held that it was proper for the case to be submitted to the jury.

In the case of Normandin v. Parenteau, 150 A. 460, a Rhode Island case, it was also said that a presumption is not evidence, but a mere legal excuse for not offering evidence, and, if rebutted at all, it ceases to be a factor in the case.

In Smith v. Tompkins, a Rhode Tsland case, 52 R. I. 434, 161 A. 221, 222, it was held: "A presumption is not evidence, and it has no weight as such. It only makes a prima facie case for the party in whose favor it exists. It merely points out the party who has the duty of going forward. Colangelo v. Colangelo, 46 R. I. 138, 125 A. 285; Minutilla v. Providence Ice Cream Co., 50 R. I. 43, 144 A. 884, 63 A. L. R. 334; 22 C. J. 156."

That a presumption is not evidence but merely a rule about evidence is also held in the following cases: Commonwealth v. De-Francesco, 248 Mass. 9, 142 N. E. 740, 34 A. L. R. 937; Rhodes v. Pennsylvania R. R. Co., 298 Pa. 101, 147 A. 854; Jacobs v. Mohnton Trust Co., 299 Pa. 527,149 A. 887.

In the case of New London Water Commissioner v. Robbins, 82 Conn. 623, at page 639, 74 A. 938, 945, the court says: "Presumptions * * * have no probative force."

In an excellent note in 42 A. L. R. 872, it is said: "The complexities and subtleties of the subject which are so graphically portrayed in the dissenting opinion [McDowell v. Norfolk So. Ry. Co., 186 N. C. 571, 120 S. E. 205. 42 A. L. R. 857] undoubtedly creates some difficulty for the courts, but there seems to lie no necessity for the jury becoming involved in them."

There are decisions to the contrary. Interesting review of this subject is found in the Harvard Law Review (May 1933) vol. XLVI-No. 7, p. 1141.

In our state the cases all hold that if the evidence adduced is positive and uncontradicted, the presumption is destroyed and a directed verdict for the defendant is warranted.

In the case of Hoffman v. Lasseff, 110 N. J. Law, 122,164 A. 293, 294, an accident case, the appellant was the owner of a car being driven by one Rosso, when it collided with the car of the respondent. Verdict was rendered in favor of the respondent. The testimony showed that Rosso did not know Lasseff; that he had no permission from Lasseff to drive the car. Rosso was engaged in affairs of his own at the time he was driving the car. Opinion of the court, by Mr. Justice Donges, was as follows: "It may be that the witnesses for defendant were untruthful in their answers; but the testimony as it stands, without contradiction either in the testimony itself or from other witnesses, leaves no room for the drawing of conflicting inferences. * * * The uncontradicted evidence rebutted the presumption of agency arising from the admitted ownership, and the court should have directed a verdict for the appellant."

It is a well-settled rule of law in our state that in a personal injury action the presumption that the driver of an automobile was acting with the owner's consent may be overcome by uncontradicted proof to the contrary; and if so overcome, then a motion for a directed verdict for the defendant owner will be granted. Mahan v. Walker, 97 N. J. Law, 304, 117 A. 609; Tischler v. Steinholtz, 99 N. J. Law, 149, 122 A. 880; Okin v. Essex Sales Co., 103 N. J. Law, 217, 135 A. 821; Cox v. Scott, 104 N. J. Law, 371, 140 A. 390; Patterson v. Surpless, 107 N. J. Law, 303, 151 A....