Gurney v. Howe

Bigelow, J. 1. The register of letters, received at the post-office at Taunton, being an official record authorized by law to be kept, was admissible in evidence. 1 Greenl. Ev. § 484. 2. The evidence, of the postmaster as to the error upon the register in the date of the receipt of the letter was rightly received. The register was not conclusive as to this date. A party has always the right to prove that a fact is different from that which it would appear to be by a portion of his own evidence. If this were not so, he would be bound by the innocent mistakes of witnesses and third parties. He can be allowed to prove the exact truth, without impeaching the evidence offered by himself. The evidence in this case was not offered to contradict the register, but to show the regular and due course of the mail, which was clearly competent. Incidentally it also showed that a date in the register was probably erroneous. Besides, the exact date of the receipt of the letter in question was quite immaterial. The real and material inquiry was whether it was received at all. 3. The instructions given to the jury were not adapted to the case, and did not properly meet the request made by the plaintiff’s counsel for a different ruling. The general rule of law is that the duty lies on the debtor to pay his debt to his creditor personally or to his authorized agent. The burden of proof to show a payment of a debt is not sustained therefore by proof that a letter, containing the requisite amount, directed to the creditor, was duly deposited in the post-office. The debtor must [408] go further. He must also show that the creditor authorized this mode of remittance, either by express assent or direction, or a usage and course of dealing from which such assent or direction may be fairly inferred. If this can be shown, then the transmission is at the risk of the creditor; otherwise, it lies upon the debtor. Warwicke v. Noakes, Peake, 67,186. Walter v. Haynes Ry. & Mood. 149. 2 Greenl. Ev. § 525. Wakefield v. Lithgow, 3 Mass. 249. The instructions given to the jury on this point did not state the rule - of law with distinctness and accuracy. They seem to make the case depend on the question whether the proposition to transmit by mail came from the plaintiff or from the defendant’s intestate. That was a fact wholly immaterial. The real question was, whether the plaintiff authorized a remittance, by mail, without qualification; or whether such authority was accompanied with any condition as to the risk of such transmission. As this question does not seem to have been passed on by the jury, the case must be tried anew. Exceptions sustained.