News Syndicate Co. v. Gatti Paper Stock Corp.

• Decision Date: 12 May 1931
• Parties: NEWS SYNDICATE CO., Inc., v. GATTI PAPER STOCK CORPORATION.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 211

176 N.E. 169

NEWS SYNDICATE CO., Inc.,

v.GATTI PAPER STOCK CORPORATION.

Court of Appeals of New York.

May 12, 1931.

Action by News Syndicate Company against Gatti Paper Stock Corporation. From a judgment of the Appellate Division (231 App. Div. 812, 246 N. Y. S. 882), affirming a judgment for plaintiff after a trial before the court without a jury, and from an order (228 App. Div. 688, 238 N. Y. S. 886) denying defendant's motion for judgment on the pleadings, defendant appeals.

Reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, First Department.

Jerome A. Strauss, of New York City, for appellant.

Leonard P. Moore, of New York City, for respondent.

HUBBS, J.

This is an action by the seller against the buyer to recover damages, under an installment contract, because of an alleged breach of the contract by the buyer in neglecting to pay for an installment at the time stated in the contract.

The plaintiff is the publisher of a daily newspaper and a weekly magazine in the city of New, York. On December 30, 1925, it entered into a contract with the defendant for the sale of all the waste paper accumulated at plaintiff's plant during the year 1926, the paper to be removed by defendant daily and the plaintiff to render invoices on the 1st and 15th of each month for the paper collected during the preceding fifteen days. The defendant agreed to pay for the same at the rates specified in the contract ‘within fifteen days after presentation’ of invoice.

From January 1, 1926, to the date of the cancellation of the contract by the plaintiff, effective August 19, 1926, the defendant removed from plaintiff's plant daily all waste paper in accordance with the terms of the contract. Commencing early in 1926, the defendant failed to make payments on time. The delay, commencing with the payment due June 1st down to the payment due July 30th, ranged from ten to twenty-three days. The plaintiff repeatedly called the defendant's attention to the delay in making payments and advised the defendant that it could not be tolerated. Under date of August 5th, the plaintiff, through its attorneys, advised the defendant by letter that, unless the payment due on August 1st was made on or before August 9th, the plaintiff would rescind the contract. That letter contained the following clause: ‘You have failed to keep your various promises concerning payments on many occasionsand such conduct on your part cannot and will not be tolerated by our client any longer.’ The payment to which the letter referred was made within the time mentioned therein.

On July 31, 1926, the plaintiff billed the defendant for paper removed during the period from July 16th to July 31st, inclusive, which at the contract price amounted to $2,319.41. There is due proof of the addressing and mailing of the bill in question. The mailing of the bill created a presumption that it reached its destination. Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 477,34 N. E. 289. The presumption is ‘founded upon the probability that the officers of the government will do their duty, and the usual course of business.’ Huntley v. Whittier, 105 Mass. 391, 392,7 Am. Rep. 536;Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25, 11 S. Ct. 691, 35 L. Ed. 332.

The offices of both the plaintiff and the defendant were in the city of New York. The fact that letters mailed in the city are received at the place of business of the party to whom mailed the next day after mailing is a matter of common knowledge, and the court could take judicial notice of the fact that a letter mailed by the plaintiff to the defendant would be delivered in the usual course of the mails on the following day, in the event that it was not a Sunday or holiday, and, if a Sunday or holiday, on the next succeeding business day. That fact has been recognized by an able and experienced justice, who was a resident of that city. Morel v. Stearns, 37 Misc. Rep. 486, 75 N. Y. S. 1082.

The presumption is strengthened in this case by the fact that the attorneys for the plaintiff wrote two letters to the defendant, one of which must have been received the day it was written, as the letter of the defendant in answer to it was dated the same day that the letter from the plaintiff's attorneys bears date. The defendant's letter in answer to the other letter was dated the next day after the date appearing upon the next from the plaintiff's attorneys.

Since July 31, 1926, was Saturday, the invoices may be presumed to have reached the defendant on August [256 N.Y. 215]2, 1926. It should be noted also that the contract did not provide for the mailing of an invoice until August 1st.

The trial court found that the fifteen-day period, within which the defendant agreed to pay, expired on August 16th. In that the court was in error, as payment was only...