Cooke v. McAleena

Bischoff, J. The defendant is a pawnbroker and is sued upon an assigned cause of action for the conversion of a watch, the property of one Easton. Prior to the Yth day of November, 1895, Easton had had dealings with the defendant in making pledges of personal property as security for divers loans and afterward redeeming the articles which were then returned to him by express, his residence being in Decorah, Iowa, and his communication with the defendant having been by mail. " The watch in question was pawned about November 1, 1894, and on November Y, 1894, the plaintiff claims that a letter was sent by Easton to the defendant inclosing the pawn ticket and a draft for the amount due and directing that shipment be made by the United States Express Co., which company alone transported goods directly to the place of his residence. Defendant, contrary to this instruction, forwarded the watch by the Admas Express Co., and it was never received bv Easton, hence this action. ■ We think that the plaintiff’s appeal from the judgment, as rendered in favor of the defendant, is meritorious, by reason of the erroneous exclusion of secondary evidence as to the contents of the letter sent by Easton to the defendant on November Y, 1895, [220] wherein the instructions touching the shipment of this watch were given. The ground of the ruling was that there was no proof of addressing, prepayment and mailing sufficient to provide a foundation for the introduction of secondary evidence, the plaintiff’s practice being correct in the other essentials to the admission of such evidence. The record discloses proof in support of the fact that the defendant actually received this letter, apart from any presumption arising from its transmission through the mails, which presumption, indeed, can, generally, be said to attach to evidence that the letter “ was sent.” Oregon S. S. Co. v. Otis, 100 N. Y. 451. Here, however, Easton’s testimony was that the ticket and draft were inclosed with the letter in question, and so sent to the defendant, whose letter admitting the receipt of the ticket and draft, were placed in evidence prior to the plaintiff’s offer of secondary proof. Thus not a presumption, merely, but the fact of the receipt of the letter was made to appear, if Easton was to be believed, and the plaintiff was clearly entitled to show the contents of the document, the value of the proof to depend upon the final determination of Easton’s credibility. As a foundation the evidence was more than sufficient. It is true that the defendant’s counsel in the course' of an argument for the dismissal of the complaint, admitted that the order had been to ship the goods by the United States Express Co., but this cannot be taken as obviating the effect of- the erroneous éxclusion of the proof in question. The defendant’s evidence at the trial might have been admitted by the justice below as showing a ratification by Easton of the shipment by the Adams Express Co., but it did not conclusively do. so and we cannot say that the judgment was not based upon other evidence to the effect that there was a course of dealing between the parties whereby, with Easton’s knowledge and assent, his redeemed pledges. were sent by the Adams Express Co., in all eases notwithstanding his order requiring shipment by the United States Express Co. But, so far as we can tell, the letter sent in this case may have expressly repudiated Easton’s satisfaction with this course of dealing and have unconditionally required obedience of its terms as to transmission by the express company named, and since there was error in exclusion of the proof, we cannot support the judgment, it not being apparent that the error was harmless. Mt. Morris Co. v. U. S. Horse Show Soc., 9 Misc. Rep. 180. [221] The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the; event. Daly, P. J., concurs. Judgment reversed and new trial ordered, with costs to appellant to abide the event.