Strauss Bros. v. Pearlman
| Decision Date | 22 August 1914 |
| Docket Number | 5772. |
| Citation | 82 S.E. 578,15 Ga.App. 86 |
| Parties | STRAUSS BROS. v. PEARLMAN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While the presumption that a letter, properly addressed and stamped and then mailed, was duly received by the addressee is not conclusive, and the inference that in due course of mail it was delivered to the addressee may be rebutted by proof that it was in fact not received, still the probative value of the testimony adduced to rebut the inference of fact upon which the presumption depends is a question addressed solely to the jury. Unless this presumption is supported either by circumstances or by direct proof showing that the letter was received by the addressee, positive testimony that a letter (which it is claimed was mailed) was not received, if neither contradicted nor discredited, is sufficient to rebut the presumption that it was duly delivered to the addressee by the postal authorities of the government. But in any case where the presumption that a letter, properly addressed sufficiently stamped, and duly mailed, was delivered to the addressee, aided and supported by evidence aliunde that the addressee in fact received the letter, comes in conflict with positive testimony that the letter was not received, the issue raised is one of fact only, and is for the solution of the jury.
In the case at bar the adjudication depends on whether the defendant withdrew from a continuing contract of guaranty before the plaintiff furnished to the principal debtor the goods which are the subject of suit. The plaintiffs insist that the guaranty was never withdrawn, and deny that they received a letter from the defendant guarantor (which the latter claimed to have had mailed), terminating and withdrawing the guaranty, and the defendant submitted (in support of testimony to the effect that before the goods were furnished he had caused the letter withdrawing from the contract of guaranty to be mailed to the plaintiffs) circumstantial testimony which authorized the conclusion that his letter was received and acted upon by the plaintiffs. Under the ruling in the first headnote the sole issue was one of fact; no errors of law are assigned, and the finding upon the facts approved by the trial judge, will not be disturbed.
Error from City Court of Americus; W. M. Harper, Judge.
Action by the Strauss Bros. against D. Pearlman. Judgment for defendant, and plaintiff brings error. Affirmed.
Ellis Webb & Ellis, of Americus, for plaintiff in error.
Wallis & Fort, of Americus, for defendant in error.
The only question raised in the case is whether the positive evidence of each and all of the partners composing the partnership of Strauss Bros. (the plaintiffs), to the effect that the copartnership had never received a letter alleged to have been written to them by the defendant, demanded a finding that no such letter was in fact received by them, and required a verdict in favor of the plaintiffs, instead of the verdict rendered, which was in favor of the defendant. It is uncontradicted in the record that on August 30, 1908 Pearlman entered into a written contract by which he undertook to guarantee the accounts of Kline Bros. up to the amount of $850. Subsequently Kline Bros. were adjudicated bankrupts, being at that time indebted to Strauss Bros. in the sum of $1,235.88, upon an open account for goods purchased in 1912. Suit on the contract of guaranty was brought against Pearlman (with copy of account against Kline Bros. attached) for $850, the amount specified in the contract. Among other...
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