Dix v. Atkins

128 Mass. 43, 1879 Mass. LEXIS 169

Opinion

Gray, C. J.

The testimony of the plaintiff and of his janitor tended to show that the plaintiff wrote a letter to the defendant, and delivered it to the janitor with instructions to read it himself and then deliver it to the defendant; and that the janitor, after reading the letter, took it to the defendant’s place of business, and, not finding him in, left it with his clerk, who said he would deliver it to the defendant on his return. This testimony, if believed, would warrant the inference of fact that the defendant had received the letter, and, if the presiding judge was satisfied of that fact, would in law entitle the plaintiff, after notice to the defendant to produce the letter, to offer secondary evidence of its contents. Dana v. Kemble, 19 Pick. 112. Huntley v. Whittier, 105 Mass. 391. The judge, without passing upon the controverted question of fact, having ruled “ that, as matter of law, sufficient proof of delivery of the letter to the defendant had not been shown,” the plaintiff is entitled to a new trial. Foster v. Mackay, 7 Met. 531. Merrill v. Merrill, 126 Mass. 228. Exceptions sustained.