Feder Silberberg Co. v. McNeil

• Decision Date: 16 June 1913
• Citation: 133 P. 975,18 N.M. 44,1913 -NMSC- 042
• Parties: FEDER SILBERBERG CO. v. MCNEIL ET AL.
• Court: New Mexico Supreme Court

133 P. 975

18 N.M. 44, 1913 -NMSC- 042

FEDER SILBERBERG CO. v. MCNEIL ET AL.

Supreme Court of New Mexico

June 16, 1913

Syllabus by the Court.

Proof that "demand was made by mail" implies a prepayment of postage and a deposit of the demand in a United States post office; but that the letter was properly addressed to the addressee at the place where he resides or receives his mail is not thereby implied, and proof of that fact must be had before the receipt of the letter by the addressee will be inferred.

Where a surety on a fidelity bond undertakes to respond upon condition that demand be first made upon the principal, such demand is a part of the contract, and must be alleged and proved.

Error to District Court, Santa Fé County; before Justice Abbott.

Action by the Feder Silberberg Company against Le Mar McNeil and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Wilson Bowman & Dunlavy, of Santa Fé, for plaintiff in error.

Renehan & Wright, of Santa Fé, for defendants in error.

PARKER J.

This is an action brought by plaintiff in error against defendants in error to recover the penalty of a bond executed by them to the plaintiff to secure the fidelity of Le Mar McNeil as an employé of the plaintiff. The provisions of the bond in so far as they are deemed pertinent to this inquiry, are as follows:

"The condition of the above obligation is such that, whereas the said Le Mar McNeil is about to enter into the employment of said Feder Silberberg Company, and while in such employment will be intrusted by them with merchandise to be used by him as samples in the course of his said employment as salesman for the said Feder Silberberg Company:

Now, if the said Le Mar McNeil shall account for all samples intrusted to him as aforesaid and deliver same in good condition to the said Feder Silberberg Company upon their demand, except such as may have been destroyed by fire, then this obligation shall be void and of no effect," etc.

At the conclusion of the evidence for plaintiff, defendants demurred to the evidence and moved for an instruction, and the court directed a verdict for defendants. In announcing his decision the court said:

"I do not believe that there is legal or sufficient proof in this case of the execution of the bond, the delivery of the bond, the demand upon this party, or the question of the corporate capacity, to sustain a verdict. I think this deposition fails in many respects to be as convincing and clear as it ought to be, and, that being the only testimony in the case, I feel obliged to sustain the motion."

Counsel for defendants rely, in support of the judgment, principally upon the proposition that there was a failure of proof of the demand upon said Le Mar McNeil for the return of the samples delivered into his custody. The evidence upon the subject is contained in a deposition, the same being the only evidence upon the subject, and is as follows:

"Interrogatory 16. If your answer to interrogatory 14 was in the negative, state whether or not demand was ever at any time made upon said Le Mar McNeil by the plaintiff herein for an accounting or return of any samples or merchandise furnished by said plaintiff to said McNeil and the result of said demands.

Answer. A demand was made by mail upon Mr. McNeil by plaintiff herein for an accounting and for return of the samples and merchandise furnished him by said plaintiff, but no response was made by Mr. Le Mar McNeil to any such demand. No letters of the plaintiff were ever answered by the said McNeil since shortly before May 1, 1905, when he requested that we advance him $25 on account of commission."

Objection to this evidence was interposed on the ground that the answer failed to show that the demand was securely inclosed in a postpaid envelope addressed to the last-known address of McNeil. In the motion for an instruction the object of this evidence is stated as follows:

"That there is no sufficient or legal proof that demand was made upon the defendant Le Mar McNeil for any accounting or return of samples, as required in the bond."

It thus appears that the objection to the evidence is not because it is not the best evidence, but because of a faulty showing as to the mailing of the demand.

Counsel for plaintiffs in error argued that from the statement, "a demand was made by mail" upon said McNeil for a return of the samples, there is implied the performance of all of the acts necessary to effectuate that result, including the inclosing of the demand in a properly addressed and stamped envelope and posting the same in a post office of the United States.

They cite a number of cases, among which are the following: Bank v. De Groot, 43 N.Y. Super. Ct. 341, 344; Pier v. Henrichshoffen, 67 Mo. 163, 169, 29 Am. Rep. 501; Bank v. Pezoldt, 95 Mo.App. 404, 69 S.W. 51; Ward v. Storage Co., 119 Mo.App. 83, 95 S.W. 964; Faulkner v. Faulkner, 73 Mo. 327; Provident Savings, etc., Soc. v. Nixon, 73 F. 144, 19 C. C. A. 414; Oregon Steamship Co. v. Otis, 100 N.Y. 446, 450, 3 N.E. 485, 53 Am. Rep. 221; Schutz v. Jordan, 141 U.S. 213, 11 S.Ct. 906, 35 L.Ed. 705; Rosenthal v. Walker, 111 U.S. 185, 4 S.Ct. 382, 28 L.Ed. 395; Williamsen v. Seely, 22 A.D. 633, 48 N.Y.S. 196.

An examination of these cases will disclose that they fail to support the doctrine claimed for them by plaintiff. They hold with a single exception, to be hereafter noticed, that the word "mailed" implies a preparation of a notice or demand for carriage by the United States mail authorities; but none of them, with the exception noted, hold that a proper address of the letter is implied from the allegation of mailing. The exception to the general rule, heretofore mentioned, is the case of Ward v. Storage Co., 119 Mo.App. 83, 95 S.W. 964.

In that case the doctrine announced is broader than the question involved therein. The plaintiff testified that she "sent" defendant her address, and it did not appear whether it was sent by messenger conveying words, or carrying a written communication, or whether it was by letter duly mailed. In that case the court said:

"It will be observed that the evidence of notice to defendant of plaintiff's address is not direct or positive evidence; it is rather made to depend upon a presumption that in regular course letters are received by addressees. In order to lay a foundation for such presumption, it should be shown that the letter was duly addressed, stamped, and deposited in the post office or place for the receipt of letters. That, however, is made to appear sufficiently by evidence that it was 'mailed' to the addressee; that a letter, to be properly 'mailed' to a person, must be addressed, stamped, and deposited in a proper place for the receipt of mail, and therefore the general statement that a letter was mailed will be sufficient."

It thus appears that the court of Missouri was not called upon to define what was...