Austin v. Holland

2 Thomp. & Cook 253

• Court: New York Supreme Court
• Decided: December 15, 1873
• Status: Published

Opinion

Per Gubiam.

We think that Loveland was a dealer with the firm, and that the court erred in excluding the proof offered that Love-land was not in either Toledo or Detroit at the time when the notices were mailed. While the mailing of a notice properly directed maybe prima facie presumptive evidence that it was received, yet it is not so entirely conclusive that the presumption may not be rebutted by proof that it was not received. When the person was absent from his residence for a considerable period of time, and not likely to receive the notice, or when engaged in the employment of the firm and absent on their business, the presumption is not as strong as it might be under other circumstances. Whether the notice was received by the plaintiff or not depended upon all the facts connected with the transaction, and’ it was competent, as a part of the surrounding circumstances, to show where the plaintiff was, and that he did not actually receive the notice.

Judgment and order reversed and new trial granted, with costs to abide the event.

Judgment reversed.