Sullivan v. Kuykendall

JUDGE HOLT delivered tiie opinion oe the court. By tlie terms of a verbal contract for the sale of personal property, the appellants, Sullivan & Co., were to-estimate and receive it within ten days after notice from the appellee, Kuykendall, that it was ready. On January 26, 1880, he wrote them a letter, which,, by due course of mail, should have been received by them within the next two days, but which, in point of fact, as the testimony shows, was not received until February 17, 1880, notifying them that the property would be ready for them on February 9, 1880. — 485 — About the eleventh or twelfth of February, 1880, Green river began rising, and by the fourteenth of the same month had overflowed its banks, and the property, being along them, was in the main destroyed. The letter' above named was properly enveloped, stamped and deposited in the-post-office, and addressed to the appellants at their usual post-office. The lower court, ■ in substance, instructed the jury that if they believed, from the evidence, that said letter was -written, addressed to the appellants at their proper post-office, duly stamped and placed in the office, then the iiresumption was that it was received in due course of mail, and that this presumption must prevail, unless overthrown by satisfactory evidence that it was not so received. This instruction was doubtless based upon the statement to be found in some text-books and a few cases, to the effect that when a letter is sent by the post, it is to be presumed, from the known course in that department of the public service, that it reached its destination at the usual time, and was received by the person to whom it was addressed, if living there and usually receiving his letters at that place. It will be found, however, that the most of these cases go no further than to hold that, in the absence of'all other evidence upon that point, the mailing of a letter, properly directed, raises a presumption that it was received, and that this presumption must prevail unless rebutted by other testimony. In the leading case of Huntly v. Whittier, 105 Mass., ■391, the learned judge (Gray, J.) said that the depositing of a letter in the post-office, addressed to a mer — 486 — chant at liis place of business, is prima facie evidence that he received it in the ordinary course of mail; but' that the jury should be so instructed only in the absence-of other testimony upon the point. The case of Russell v. Buckley, 4 R. I., 525, is to the same effect; while authority is abundant, that the mailing of a letter creates no presumption whatever that it: was duly received. In United States v. Babcock, 3 Dillon’s C. C. Reports, 571, Judge Dillon uses this language : “Upon the subject of the admissibility of letters, by one person addressed to another, by name, at his known post-office address, prepaid, and actually deposited in. the post-office, we concur, both of us, in the conclusion, adopting the language of Chief Justice Bigelow, in-. Commonwealth v. Jeffries, 7 Allen, 563, that this is evidence tending to show that such letters reached their destination, and were received by the persons to whom they were addressed. “This is not a conclusive presumption, and it does-not even create a legal presumption that such letters were actually received; it is- evidence tending, if credited by the jury, to show'the receipt of such letters.” In the case of negotiable paper, it has long been held that the depositing of a letter in the post-office by the-holder to the indorsers is not only good yrima facie evidence, but sufficient to establish the fact that notice was given. But this rule has been established by the law merchant through commercial necessity. By the common law, this presumption did not exist even as to negotiable paper; and, after a careful examination of the authorities, we are satisfied that it ought: — 487 — not to be held to arise in ordinary business transactions, and especially between men whose business does not require them to watch the arrival of the mails. (Freeman v. Morey, 4 Maine, 50; National Bank v. McManigle, 69 Penn., 156; Greenfield Bank v. Crafts, &c., 4 Allen, 447.) The mailing of the letter in this instance created no-legal presumption, but was proper testimony to be considered by the jury, together with the other evidence, in determining when it was received ; and they should not have been instructed that a presumption arose fremit which must prevail, unless overthrown by.other satisfactory evidence-. The instructions in other respects were unobjectionable. The appellants relied upon an alleged new contract between them and the appellee, by which the one sued upon was annulled; but this was a question of fact as-to which the testimony was conflicting; and the finding of the jury would not, therefore, be disturbed, if this-were the only question presented by this appeal. • In view of another trial of the case it is proper that we should pass upon what seems to us to be a new question as to the competency of certain testimony; at least we have been unable to find any direct authority upon it. The appellee, upon going to the place, on February 9,. 1880, where the property was to be received, did not find the appellants, or any one representing them. He thereupon went to a telephone ofBce at Morgan-town, Kentucky, for the purpose of communicating with the appellants at Bowling Green, Kentucky ; and — 488 — not being accustomed to the use of the instrument he got the operator to talk for him. He first directed him to call for the appellant, Sullivan, and he did so, the Bowling Green operator reporting back that he would send for him to come to the office. Presently the Morgantown operator told the appellee that Sullivan was at the Bowling Green office and desired to know what was wanted, and thereupon a conversation took place, Sullivan using the instrument himself while the Morgantown operator talked for the appellee, and told him what Sullivan said as it came over the wire. The latter testifies that on that day he had a conversation over the telephone with some one at Morgantown, and upon the same subject to which the appellee says the conversation related ; but they differ widely as to what was said. The Morgantown operator, being introduced as a witness, testifies that upon the day named he had a conversation upon that subject with some one at Bowling Green, whom the operator there told him was Sullivan ; but that he does not recollect what was said. Under this state of case the court below permitted the appellee to prove, by himself and two other persons who were present at the time, what the Morgantown operator reported to appellee, while the conversation was going on over the wire, as being said by Sullivan. 'i It is certain that the latter did talk' over the wire, •because he says so. The appellee did not pay the telephone charge, and it does not appear who did, save the Bowling Green operator reported to the Morgantown one that Sullivan would do so ; and the latter is silent upon this point. — 489 — It would, beyond question, have been competent to prove, by the Morgantown operator, what Sullivan said to him • but whether his report to the appellee of what Sullivan was saying, made as the conversation progressed, is competent or falls within the domain of incompetent hearsay testimony, is a question of importance in view of the astonishing growth of the business to which it relates, and one not free from difficulty. In the case of a telegram, the original must usually be produced in evidence, or its loss shown, before its contents can be proven or the copy delivered by the operator to the party receiving the message used, unless it be where the copy becomes primary testimony by the telegraph company being the agent of the sender. C In the use of the telephone, however, the parties talk with each other as if face to face; and, save where a mere message is sent, 'there is no written evidence of what has passed. By inventive means they are brought together for the transaction of business. It is a well settled rule that where one, through an interpreter, makes statements to another, the interpreter’s statement, made at the time, of what was so said, is competent evidence against the party. The interpreter need not be called to prove it, but the interpreter’s statement, made at the time, may be proven by third persons, who were present and heard it. (Camerlin v. Palmer Co., 10 Allen, 539 ; Schearer v. Harber, 36 Ind., 536; 1 Greenleaf’s Ev., section 183; 1 Phillips’ Ev., 519, side-page.) The reason of this rule is that the interpreter is the agent of both parties, and acting at the time within the .scope of his authority, and we have been unable to — 490 — draw any satisfactory distinction between this case and. the one under consideration. The argument is at least plausible, if not correct, that the testimony in question is competent as a part of' the res gestae, aside from the question of agency. It is true the parties can not see each other, but the-statements of an interpreter between blind persons could be proven bj^ third parties without calling the-interpreter as a witness, and^by telephonic means persons are as much together for all purposes of conversation, and actors in what may be occurring, as if they were immediately present with each other?| We must not be understood, however, a's holding the ■ testimony competent upon the above ground, because there is another reason for so ruling, which is conclusive • to our minds. Subject to various qualifications, the old rule, that a party must produce the best evidence within his power to prove a fact, should govern. But as business expands by the aid of new inventions, wider scope must be given to the rules of evidence. There is no need, however, of any departure or innovation in this case, because it is a well settled rule of evidence that the statements of an agent, when acting within the scope of his agency, are-competent against his principal. When one is using the telephone, if he knows that, he is talking to the operator, he also knows that he is. making him his agent to repeat what he is saying to-another party; and, in such a case, certainly the statements of the operator are competent, being the declarations of the agent, made during the progress of the: transaction. — 491 — If lie is ignorant whether he is talking to the person with whom he wishes to communicate or with the operator, or even any third- party,- yet he does it with the • expectation and intention on his part that in case he is not talking with the one for whom the information is intended, that it will be communicated to that person; and he thereby makes the person receiving it his agent to communicate what he may have said. This should certainly be the rale as to an operator, because the person using a telephone knows that there is one at each station whose business it is to so act; and we think that. the necessities of a growing business require this rule,. and that it is sanctioned by .the known rules of evidence. Judgment reversed.