Western Twine Co. v. Wright
| Decision Date | 13 April 1899 |
| Citation | 78 N.W. 942,11 S.D. 521 |
| Parties | WESTERN TWINE CO. v. WRIGHT et al. |
| Court | South Dakota Supreme Court |
Appeal from Minnehaha county court; W. A. Wilkes, Judge.
Action by the Western Twine Company against F. R. Wright and others. Judgments for defendants, and plaintiff appeals. Affirmed.
Rochford & McMahon, for appellant. Davis, Lyon & Gates and A. B Kittredge, for respondents.
A breach of warranty as to the quality of certain binding twine, purchased by the defendant F. R. Wright from the plaintiff, was the only defense relied upon in this action to recover the amount of a promissory note given in settlement therefor, and this appeal, taken by plaintiff from judgments in favor of defendants, presents some questions pertaining to the law of evidence which, on account of their importance require most careful consideration.
It appeared at the trial that respondent F. R. Wright, a resident of Rowena, S. D., gave to appellant, of 143-5 Monadnock Block, Chicago, Ill., an order for 15,000 pounds of binding twine, and soon afterwards sent from Sioux Falls a telegram, of which the following is a copy: As a part of the transaction, the following was offered and received in evidence: Although the possession of the message as written by appellant was denied on notice to produce, and it was shown that the sender of the former message received this promptly from the telegraph operator at Rowena, and "that all telegrams either received or sent at or from Sioux Falls, or Chicago, more than six months prior to the date of the trial, had been destroyed," in compliance with a rule of the Western Union Telegraph Company, appellant's objection was that the same is "incompetent, immaterial, and irrelevant, no foundation laid for the introduction of such evidence, the plaintiff not being connected therewith, or shown to have executed or authorized any such dispatch, and no proof of such dispatch ever having been transmitted from Chicago, or ever received at Rowena, S.D. Hearsay in its nature." When the message addressed to appellant was deposited in the office with the operator at Sioux Falls, all charges for transmission being prepaid, every inference that follows the posting of a letter with similar correctness, to be sent by United States mail, attached, and, in the absence of anything to the contrary, the presumption is that the same reached its destination, and was delivered in accordance with the obligation which the law imposes upon telegraph companies. Perry v. Bank (Neb.) 73 N.W. 538; Com. v. Jeffries, 7 Allen, 548; 2 Whart. Ev. par. 1323; Crosw. Electricity, par. 674. In Steamship Co. v. Otis, 100 N.Y. 446, 3 N.E. 485, the court say: "There is impressed upon the telegraph service something of a public character, and thrown around it the guard and the obligations of the public law, and it seems to us reasonable to assimilate the rules of evidence founded upon transmission by mail to that of transmission by telegraph." As a rule, to which an exception is very rare, all letters and all telegrams with equal certainty reach their destination, and, the reasonable intendments with reference to each being identical, the same legal presumption may well be entertained as to both. If the telegram which purports to come from appellant be considered as a copy, the original of which has been destroyed, its admission was authorized, under the elementary principle that, after the proper foundation has been laid, resort may be had always to secondary evidence, as the best within the power of the party to produce. Unquestioned, as it is, the presumption that the first message was transmitted to, and received by, appellant stands as ample proof of that fact, and, if the purported reply was not sent by some one having authority to enter into a contract on its behalf, the matter was peculiarly within its knowledge, and might easily have been shown. Unless forgery by some one or fraud upon the part of the telegraph company is to be presumed, the delivery of the message to respondent at Rowena by its operator is a proper circumstance, tending strongly to show that, on the very day respondent F. R. Wright sent his message to Chicago, appellant placed its reply thereto in transit over the wires. Scott & J. Tel. par. 380. Were a doctrine to prevail contrary to that which applies to a letter in the hands of its recipient, and which purports to be an answer to one he has written, and which was received by the party addressed, an agency by which the most important of human affairs are constantly transacted would be seriously impaired, and a distinction would be made to exist without a material difference.
This court has held that "a letter received by due course of mail from a party, in reply to a letter addressed to such party, is presumptively...
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