Young v. Westphalen & Co
| Decision Date | 03 July 1916 |
| Citation | 72 So. 193,111 Miss. 765 |
| Parties | YOUNG v. WESTPHALEN & CO |
| Court | Mississippi Supreme Court |
March 1916
APPEAL from the circuit court of Holmes county, HON. MONROE MCCLURG Judge.
Suit by Westphalen & Co.; J. K. Young, administrator of W. L. Young and others. From a peremptory instruction for plaintiff directing a verdict, defendant J. K. Young appeals.
Appellees were plaintiffs in the court below and appellant was defendant. Appellees, cotton brokers of Havre, France, filed suit in the circuit court against J. P. Leake, W. L. Young and J. K. Young, alleging the existence of a partnership among the defendants, and claiming damages for breach of a contract made between plaintiffs and J. P. Leake & Co. composed, as alleged, of the said defendants, whereby said defendants undertook to deliver to plaintiffs eight hundred bales of cotton at a stipulated price; and, having failed to comply with said contract, plaintiffs were damaged to an amount equal to the difference in the contract price and the price at the time delivery was to be made. No service was had upon J. P. Leake, and suit as to him was dismissed, and, the proof showing that J. K. Young was never a member of the firm, judgment was directed in his favor. W. L. Young having died, suit proceeded against J. K. Young, administrator of his estate, as defendant.
On the trial, J. P. Leake testified that W. L. Young had been a member of the firm of J. P. Leake & Co. from June. 1908 to May, 1909, and that in July, 1909, he (Leake) wrote to all of the correspondents of the firm, including plaintiffs advising them of Young's withdrawal from the firm, and that the writer would continue in business alone, and that he posted said letter in the United States mail. Plaintiffs denied receiving this letter. At the close of the evidence, the court directed a verdict for plaintiffs against the appellant, and this appeal is prosecuted.
Reversed and remanded.
E. F. Noel and Elmore & Ruff, for appellant.
Gardner, McBee & Gardner and Julian C. Wilson, for appellee.
While a presumption that a letter, properly addressed, stamped, and mailed, reached the addressee is not conclusive, but may be rebutted by evidence showing that the letter in fact was not received, whether the rebutting evidence is sufficient to overcome the presumption is a question for the jury. See cases cited in notes to Feder Silberberg Co. v McNeil, 49 L. R....
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R. T. Clark & Co. v. Miller, State Revenue Agent
... ... Co., 138 A. 136; Town of Newton v. State Highway ... Commission, 138 S.E. 601; State, ess rel. Edgerly v ... Currie, 55 N.W. 859; Young v. West-phalen & ... Co., 111 Miss. 765; Feder Silberberg Co. v ... McNeil, 49 L. R. A. (N. S.) 468; Merchants' ... Exchange Co. v. Sanders, ... ...
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Employers Mut. Cas. Co. v. Nosser, 43044
...it is presumed that it was never mailed. This Court appears to be committed to the above doctrine. In the case of Young v. Westphalen & Co., 111 Miss. 765, 72 So. 193 (1916), J. K. Young, Administrator of the Estate of W. L. Young, and other alleged partners, were sued by the appellees for ......
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Employers Mut. Cas. Co. v. Nosser, 43044
...Moreover, these cases did not involve a contractual provision in an insurance policy for cancellation by mailing. Young v. Westphalen & Co., 111 Miss. 765, 72 So. 193 (1916); McCreary v. Stevens, 156 Miss. 330, 126 So. 4 (1930); see Threatt v. Threatt, 212 Miss. 555, 54 So.2d 907 In the ins......
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McCreary v. Stevens
... ... Company had not carried out ... their agreement, and that the notes would not be paid. We ... think, this evidence, under the case of Young v ... Westphalen & Co., 111 Miss. 765, 72 So. 193, 194; was ... sufficient to make a case for the jury's determination, ... as to whether Stevens ... ...