Oregon Steam-Ship Co. v. Otis

• Decision Date: 24 November 1885
• Citation: 3 N.E. 485,100 N.Y. 446
• Parties: OREGON STEAM-SHIP CO. v. OTIS.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 446

3 N.E. 485

OREGON STEAM-SHIP CO.

v.OTIS.

Court of Appeals of New York.

Filed November 24, 1885.

John R. Abney, for appellant, George R. Otis.

Geo. H. Adams, for respondent, the Oregon Steam-ship Co.

FINCH, J.

The referee has found that the defendant's contract with the government to transport the mails between San Francisco and Portland, Oregon, though made in his own name as contractor, was in reality made by him as agent for and in behalf of the plaintiff company, which actually performed the service; that the compensation paid him, as between himself and the plaintiff, belonged to the latter, except that out of it Otis was entitled to retain a commission for his agency; that he in fact retained and refused to pay over a much larger sum, for the conversion of which he was sued, with the result of a recovery against him. The evidence was sufficient to warrant the conclusion of the referee upon the facts; but, assuming them as they have been found, the appellant seeks to defend upon the contention that his agreement of agency was void, because in contravention of the federal law, which makes it legally impossible for a contractor to sell or transfer or assign his contract for the transportation of the mails. We do not think that fact could operate to annul the agency or vitiate the liability to the plaintiff so far as the money actually received was concerned. By section 3954 of [100 N.Y. 450]the United States Revised Statutes it is made a misdemeanor for the bidder to refuse to enter into the contract and perform the contracted service. Otis did enter into the contract, and, as between him and the government, did perform the service and receive the stipulated pay. By section 3963 it is provided that the contractor shall not assign or transfer his contract, and such assignment or transfer shall be void. Otis made no assignment or transfer. As between him and the government he remained contractor and gave to nobody any right, through or under him, against the employer. That did not prevent him from holding the contract for the benefit of the company which performed the service, and agreeing to collect and hold the pay for them and as their property when received. That was the agreement which the referee found was made, and it violated neither the letter nor spirit of the law. The obvious aim of the enactment was to prevent a liability of the government upon the contract to any person but the accepted bidder. That object was accomplished. What became of the money when earned and paid was immaterial to the employer, and Otis might, as he did, put himself in the attitude of an agent for the defendant company as between them. This question does not appear by the record to have been specifically raised, and it is quite probable that the exceptions were too general and ambiguous to present it for review. But it seems to have been considered and discussed in the courts below, and so we have thought it best to dispose of it here.

But other and very serious questions were raised by objections taken to the admission in evidence of a large number of letters and telegrams. Many of these documents were important in their bearing upon the facts, and must have largely contributed to the ultimate result. They consisted of three letters from Norris to Otis, and one from Otis to Norris, and then of a large number of telegrams; and the objections were that, as to those purporting to be addressed to the defendant, there was no competent evidence that he ever received the originals; and, as to those purporting to have been signed by him, that there was no competent evidence that he ever wrote or sent them. Our consideration must be limited to these precise objections to the question, as between sender and receiver.

Norris swears that he sent the three letters written by him to Otis. In the absence of any proof to the contrary, or any inquiry a to the mode, we must understand this to mean that they were mailed in the usual manner. If there was doubt about that, the attention of Norris should have been drawn to it, and the manner of transmission challenged. It would be extremely critical to deny to the form of expression used by the witness its ordinary and usual interpretation, because it might have been more precise and explicit, in a case where the party addressed is examined as a witness and does not deny the receipt of the letters, although material to the issue. On such a state of facts the jury were authorized to believe that the three letters sent to Otis were received by him. The one letter sent by Otis to Norris was identified by the latter, who knew his correspondent's handwriting, as appears by the deposition. Notice to produce the letters of Norris was given, and, not being produced, copies of them were read in evidence.

But there is more difficulty about the telegrams. The originals were shown to have been destroyed by the telegraph company, so that a resort to secondary evidence became necessary. We shall first consider the proof as to those sent by Norris. It consisted merely of his statement that he sent the message by telegraph to Otis, who resided in New York, directed to him at that city. Such direction appears upon the copies produced; and the first question is whether a similar presumption of fact follows the delivery of the message, properly addressed, to the telegraph company for transmission, to that which follows the delivery of a letter to the post-office. The drift of authority gives an affirmative answer. Gray, Tel. § 136; Com. v. Jeffries, 7 Allen, 548; Whart. Ev. § 76; State v. Hopkins, 50 Vt. 316; Scott & J. Tel. § 345. The presumption indulged is one of fact, and so open to rebuttal and contradiction, and consists merely in the natural inference which may be drawn from the experienced certainty of transmission. The great bulk of letters sent by mail reach their destination, and equally so the great bulk of telegrams. A failure in either case is an exception; possible, but rare. The letters are transported by government officials, acting...