#### MODEL MILL COMPANY et al. v. D. H. WEBB et al.

(Filed 10 December, 1913.)

Banks and Banking — Correspondent Bank — Bills and Notes — Trials —Payment—Mail—Evidence.

Evidence tbat a letter bas 'been, mailed is some evidence tbat it was properly addressed, stamped, and received' by tbe addressee ; and where there is evidence tbat the drawer of a draft *88deposited it in iiis bank, which mailed it to its correspondent bank at a different town; that it was paid to some one by.the drawee; it is sufficient to sustain a verdict of the jury in fayor of the drawer in an action brought by him against the correspondent bank for collecting the money and failing to remit.

Appeal by defendant, American National Bank, from Adams, J., at April Term, 1913, of BttNcombe.

Plaintiff.Model Mill Company, of Johnson City, Tenn., had sold and shipped -goods to the defendant D. H. Webb, at Ashe-ville, N. 0., drew a draft on him for the .price ($62.78) with bill of lading attached, and placed it with the National City Bank of Johnson City for collection. The draft and bill of lading were mailed by that bank to the defendant American National Bank of Asheville for collection. There was evidence that the latter bank did not receive the letter nor collect it. The draft was paid by defendant Webb, but he did not know to whom. He received the bill of lading and got the goods and admitted that he owed the Model Mill Company for them, but stated that he had paid the debt. The court charged that if Webb paid the money to the American National Bank, which held the draft, it was, in law, a payment to the plaintiff Mill Company and discharged defendant Webb; but if to any one else, not authorized to receive the money, it was not a payment by him to the Mill Company, and he would still be liable to it. The court left the question of payment to the defendant bank to the jury, instructing them to consider all the evidence and find as to the fact. The jury returned a verdict that Webb had paid the money to the bank, under the charge, by answering the first issue as to the indebtedness of Webb to the Mill Company “No,” and the second issue, as to the indebtedness of the defendant bank, “$62.78.”

Judgment for plaintiff, and appeal by defendant.

W. B. Whitson for plaintiff.

J. T. Merrimon for American National Banle, appellant.

Walker, J.,

after stating the case:' The only question is,. Was there any evidence to support the charge and the verdict? *89The City National Bank, it appears, mailed the letter witb the draft and bill of lading to the defendant bank. This was evidence of its receipt by the latter, and raised a rebuttable presumption of the fact to be submitted to the jury, along with any evidence in the case tending to show that it was or was not in fact received. This is said to be founded upon another presumption, that officers of the Postoffice Department will do their duty, or upon the better reason, the regularity and certainty with which, according to common experience, the mail is carried. It is, at least, evidence from which the jury may reasonably infer the fact that the mail matter was received in due course of transmission and delivery. 16 Cyc., 1065; Bragaw v. Supreme Lodge, 124 N. C., 154; Coile v. Order of Commercial Travelers, 161 N. C., 104; Hollowell v. Insurance Co., 126 N. C., 398; Huntley v. Whittier, 105 Mass., 391; Starr v. Torrey, 22 N. J. L., 190; Austin v. Howard, 69 N. Y., 571; Howard v. Daly, ibid., 362; Dana v. Kemble, 19 Pick., 112. This kind of remittance is according to the universal custom of banks in collecting drafts or other commercial papers. Farther or more certain proof of the receipt by the bank of the letter than is derived from the fact that it was properly mailed would be wholly unnecessary, always difficult, and often impossible, as suggested by Chief Justice Ames, for the Court, in Russell v. Buckley, 4 R. I., 525 (70 Am. Dec., 167). If the law generally requires the best proof of which the particular fact in issue is susceptible, this is the best possible under the circumstances of this case. It is not conclusive. The contrary may be shown or may be inferred from all the testimony, but it is some evidence of the fact. “The burden of proving its receipt remains throughout upon the party who asserts it.” Huntley v. Whittier, supra. Such a remittance, as is said in Hollowell v. Insurance Co., supra, is at the risk of the remitting bank, and if the letter was not actually received, the bank addressed is not liable. But this is not that question, but one merely of proof as to the receipt of the draft.

But defendant contends that there is no evidence that the letter inclosing the draft and bill of lading was properly ad*90dressed and stamped and deposited in tbe mails for transmission. Tbe testimony is tbat the clerk in tbe Johnson City Bank “mailed the letter t'o the American National Bank of Ashe-ville,” and “it was forwarded by tbe (former) bank to tbe American National Bank of Asheville.” These are tbe expressions used by tbe witness Samuel T. Millard. When a person says tbat be “mailed” a letter to another, it is commonly understood tbat tbe letter was in a mailable condition, properly 'addressed to tbat other, and stamped. We would not speak'of a blank envelope deposited in tbe postoffice, neither stamped nor addressed, as having been mailed-; and when tbe witness said tbe letter was mailed to defendant bank, tbe jury could, at least, infer tbat be meant it was addressed' and stamped and deposited in tbe postoffice as is usual, tbat is> in tbe ordinary way. U. S. v. Rapp, 30 Fed. Rep., 818. At page 822 will be, found tbe expression, “This letter was mailed precisely like other letters,” and tbe word “mailed” is several times used by tbe Court in tbe sense we have given to it. Matter, in order to be mailable, must be stamped and addressed; otherwise, it will not be transmitted. 2 U. S. Compiled Statutes, p. 2663, sec. 3896. Besides, defendant D. H. Webb testified tbat be lived in Ashe-ville, N. C., and paid tbe draft and got tbe bill of lading; tbat be did not pay tbe Model Mill Company, but paid some one. Tbe letter inclosing tbe draft and bill of lading must have been transmitted to Asheville, which is some evidence tbat it was stamped. It Was not addressed to Webb, because be paid the draft to some one else, who bad it.' Tbe bank at Asheville is tbe only other person or corporation at Asheville connected with tbe transactibn by tbe evidence. Tbe jury could draw these conclusions, and from them make tbe further deduction tbat tbe bank collected tbe draft.-

Tbe charge of tbe learned judge was clear and explicit, and submitted tbe question fairly to tbe jury. There was strong-evidence tbat tbe defendant bank did not receive tbe paper or handle it, but tbat it was really addressed to tbe defendant D. H. Webb by mistake, 'and tbat be used tbe bill of lading-attached to get tbe goods from tbe railroad company, as be *91could not say to whom be bad paid tbe draft. But tbe jury,, unfortunately for tbe defendant bank, liave decided otherwise, and we cannot revise tbeir verdict.' It may be a bard case, and if justice bas miscarried, we' can do nothing more than regret it. On tbe other side, it may be said that a most able and enlightened judge, profoundly imbued with a strong sense of justice and right, bas beard tbe witnesses and seen tbe actual occurrences of tbe trial, and is, therefore, far more competent to judge of the correctness of tbe verdict than we are. We should, therefore, hesitate to disturb it, even if we bad tbe power, but rather defer to bis better judgment.

No error.