p. 752Jonathan E. Van Doren, Resp’t, v. Fajbush Liebman, Impl’d, App’lt.Headnote
Partnership—Notice of dissolution—Service by mail.In an action against vartners where the defense is that the partnership was dissolved before the goods or services in question were ordered and notice of such dissolution sent to plaintiff by mail, it is error for the court to refuse to charge that if the jury believe the notice was mailed a presumption that it was received arose from- that fact, and such error is not cured by a direction that it was for them to determine whether notice was sent through the mail.
Appeal from judgment of the ninth district court.
Action to recover for advertising done for defendants under their firm name on written orders. Defendant denied his liability for that portion of the claim ordered after November 1, 1889, on the ground that the partnership was dissolved on that day and plaintiff notified thereof.
A witness for plaintiff testified that he deposited in the post office a large number of notices of the dissolution, including one to plaintiff, post paid. Plaintiff and his witnesses testified that he never received it
David Leventritt, for app’lt; Alexander & Ash, for resp’t
When the question was submitted to the jury whether notice of dissolution was received by the plaintiff, the defendant was entitled to the benefit of the presumption that a notice properly directed and duly mailed and post-paid was received by the party to whom it was addressed; under the ruling in this case he was deprived of the benefit of that presumption. The jury were not permitted to deliberate upon the case with that presumption in their minds. The fact that a notice was properly directed and duly mailed raises the presumption that it was received in course of mail. The jury might believe, notwithstanding such mailing, that the plaintiff never received it, and give a verdict accordingly, as they did in this case; but they were bound to take into consideration the mailing of the notice and the presumption raised thereby. Of that the defendant was deprived in this case.
Counsel. Does your honor note what the judge says ? Thsit it was for them to determine whether notice was sent through the mails.
Daly, Oh.
p. 753. said he would not charge that; yet such is the law as stated in
Austin v. Holland, 69 N. Y., 571 .
Judgment reversed and new trial ordered.
Bischoff and Pryor, JJ., concur.