Lawrence Bank v. Raney & Berger Iron Co.

26 A. 119, 77 Md. 321, 1893 Md. LEXIS 14

• Court: Court of Appeals of Maryland
• Decided: March 16, 1893
• Status: Published

Opinion

Rage, J.,

delivered the opinion of the Court.

This appeal is from the order of the Court below dismissing the petition of the Lawrence Bank of Pittsburgh to strike out a judgment of condemnation obtained by the Raney & Berger Iron Company, against the Robert Poole & Son Company, of Baltimore City, garnishees of J. P. Long and Company.

The attachment was issued on the twelfth day of March, 1890, judgment of condemnation was entered on the fourteenth day of April following, and the petition of the Lawrence Bank was filed on the thirtieth day of March, 1892, or more than twenty-three months after the judgment was rendered. The allegation upon which the appellant prays that the judgment may he stricken out, is, that it was obtained by fraud, irregularity, and surprise. It is alleged in the petition, that before the attachment was laid, .Long and Company had assigned the money due them by the garnishees, to the petitioner, and the garnishees had been notified of the assignment; but that notwithstanding, the garnishees refrained from informing the Court of the assignment, or the petitioner, that the credit had been attached, and, instead thereof, filed an admission of assets in their hands to the credit of Long & Co., whereupon the judgment of condemnation was entered. The petitioners further allege they liad no notice or knowledge of the said attachment proceedings. The answer of the Robert Poole & Son Company, denies there was fraud of any kind practiced in the obtention of the judgment; alleges that “immediately upon the laying of the attachment, notice in writing of said attachment was sent by the respondents to, “the Lawrence Bank, or to its representative, or alleged assignee, of any rights it might have acquired to said indebtedness” of the respondents to Long and Company, and “relies upon the gross laches of said Lawrence Bank” in allowing such length of time to elapse before moving to strike out the said judgment, “as dis-entitling it to the interference” of the Court.

The first question, therefore, presented for our consideration is, had the Lawrence Bank, its representatives or assigns notice of the laying of this attachment, as alleged by the respondent? Eor if it was informed of it at the time it was issued or laid, and has slept on its rights for nearly two years, we do not think it has acted with such diligence, as will entitle it now, to the relief, for which it asks. “Laches and unreasonable delay are always fatal to motions of this character.” Post and Barrett vs. Bowen, 35 Md., 232.

After the term, at which the judgment was rendered, has elapsed, a party seeking to set it aside must not only establish his right by clear and convincing proof, but it must also appear that he has acted with ordinary diligence, or, to use another phrase, without unreasonable delay. Taylor and Wife vs. Sindall, 34 Md., 38; Dorsey vs. Kyle, et al., 30 Md., 512; Kemp and Buckey vs. Cook and Ridgely, 18 Md., 130.

It is alleged on the part of the Robert Poole and Son Company, that on the twelfth day of March, 1890, the day on which the attachment was issued, it addressed a letter to the Fidelity Title and Tr.ust Company of Pittsburgh, (the assignee of the Lawrence Bank,) in the following words:

“Gentlemen: An attachment was this morning laid in our hands by Messrs. Raney and Berger of New Castle, Pa., against any property or funds that we may have in our hands to the credit of Long & Co., of your city, which attachment is returnable on April 2nd proximo. You will please take such action as you deem advisable.

“We are yours truly, “Robert Poole & Son Company, “A. Edwards.”

On the other hand, the Fidelity Title and Trust Company deny ever having received this letter, or that -otherwise they had any notice of the attachment; but Mr. Ewing the attorney of that Company, states that it was about a, year before he gave in his testimony, that he “first learned of the payment'' of this money under the attachment. The record does not show the precise time when he testified, but as the reply of the respondents was filed on the thirteenth of April, 1892, and the return of the commissioner in Pittsburgh was made before the thirtieth day of June following, Mr. Ewing must have obtained his information sometime between the first of May and July of the year eighteen hundred and ninety-one, or from nine to eleven months before the filing of the petition. It is probable the information Mr. Ewing then received, was that contained in the letter to him of Messrs. Barton and Wilmer, dated the 16th July, 1891, in which those gentlemen made a full statement of the matter as it then stood. The Fidelity Company had been the assignee of the Lawrence Bank, as far back at least as the 23rd November, 1889, and as such had ever since had full power to enforce, in any Court, all the claims which the Lawrence Bank may have had against the Robert Poole and Son Company. It had also during the entire period it was so empowered, full knowledge of the indebtedness of that Company to Long and Company. It must at least be charged, therefore, with notice of the attachment from the period when its attorney Mr. Ewing obtained his information; and that it delayed its proceedings to have the judgment stricken out for a period of more than eight months afterwards, is quite sufficient in view of the fact that the money has been paid, and of all the circumstances of the case, to compel the Court to declare, that by such prolonged postponement it has been guilty of unreasonable delay, and lost whatever right it might otherwise have had to the relief for which it asks. But, apart from this, we are not required to rest our decision entirely upon this ground, for upon a careful review of all the evidence pertaining to the subject and the law applicable to it, we are all of the opinion, that the Fidelity Company must be held to have had notice by the letter of the Robert Poole and Son Company of the 12th March, 1890.

That this letter was written at the dictation of Mr. Gfeorge Poole, copied, addressed, prepared for the mail, and placed “among the mail of the company for that day” is not disputed. It also appears that at the same time a similar letter was' written to Long & Co., and the witness states, “both of them were written, copied consecutively and prepared for mailing at the same time, and placed among the mail of the company for that day.” Both were enclosed in envelopes on which were printed the words, “Return to Robert Poole & Son Company, Baltimore, Md., if not delivered within five days.” That addressed to Long & Co. was duly received and responded to, and the one to the Fidelity Company has never been returned, notwithstanding the words printed on the envelope. Mr. Poole also testifies, that 11 in the course of business we have a very great many letters mailed in a similar way;” and we understand this to mean that these letters were mailed according to the “course of business,” and that the letters so forwarded by the firm included a “very great many.” *

It is well settled “that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the Post Office Department, that it reached its destination at the regular time, and Avas received by the person to whom it Avas addressed.” Rosenthal vs. Walker, 111 U. S., 196, and authorities there cited.

Mr. Justice Woods in that case, citing from the case of Huntley vs. Whittier, 105 Mass., 392, proceeds: — The presumption so arising is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty, and the usual course of business, and, when it is opposed by evidence, that the letters never were received, must be ■weighed with all the other circumstances of the case, by the jury in determining the question, whether the letters were actually received or not. ” A like presumption arises from the usual course of the business of a merchant. If it be proven, that a merchant has a particular method of dispatching his correspondence, and that one of his letters was properly written, copied, addressed, and otherwise prepared for transmission through the post office, and was then placed among the mail of that day, (that is, placed among the material intended for the post office,) according to the usual habit of his house, and that this was the course of business, there follows a reasonable inference that such letter was forwarded and received by the party to whom it was addressed. In Hetherington vs. Kemp, 4 Campbell, 193, evidence was given by the plaintiff that he wrote a letter at the time and addressed it to the defendant, and put it on a table where letters were usually placed which were to go to the post office. This -was held not to be sufficient evidence that the letter was forwarded, but, if it had been proved that all letters so placed were usually carried to the post office, it might have done. And in Miller vs. Hackley, 5 Johns., 375, the notary testified that it was usual for him, when the drawer or endorser lived at a distance, to send a written notice of the dishonor of the bill to them, by post, on the evening of the same day, and that ho believed he had sent such notice in that way, and it was held sufficient. Ho in Dana vs. Kemble, 19 Pick., 112, in a case where a letter was deposited in an urn in a hotel office, from which it was customary to distribute letters to guests, it was held there was a presumption of the receipt of the letter by the party to whom it was addressed. 2 Wharton on Evidence, sec. 1330; Thalhimer vs. Brincherhoff, 6 Cowen, 96; Pritt vs. Fairclough, 3 Campbell, 305; Hagedorn vs. Reid, 3 Campbell, 377; Hawood vs. Daly, 61 N. Y., 362.

From the circumstances of the preparation of, and dealing of the Robert Poole & Son Company with this letter, we are of the opinion that a presumption of its transmission and receipt must arise, and this presumption is rendered much stronger by the fact that, though the letter was enclosed in an envelope bearing a direction for its return, if not called for in five days, it was never returned to the sender; and also, by the further fact, that the letter to Long & Co., written, prepared, addressed for transmission to the same post office and in all respects treated in the same way, and at the same time, was duly received and responded to by that firm.

But this presumption is not one of law, but a mere inference of fact, and for the purpose of rebutting it the appellant has offered much evidence, which we will now proceed to examine. It appears that four officers of the Fidelity Company have been examined; the book-keeper, Willock, who entered into the service of the company in January, 1890, as a stenographer and type-writer, and has had charge of filing the letters connected with the affairs of the Lawrence Bank; he states, that if the letter had been received, while he would not have been detailed to answer it, it would have come into his hands for filing; William Burt, who became connected with the company in February, 1891; he could have no personal knowledge of the letter, but he made a search for it, without finding it; Franklin Brown, the assistant secretary, who testifies, that he never received any communication, &c.; he had caused a search to be made through the records and papers of the company, without success in finding such a notice: — and David Q. Ewing, the attorney of the company, who also “caused” a search to he made, without results, and whose testimony is, substantially, that the company never received the letter in question: that, if any notice of the attachment had been received by the Fidelity Company, it would necessarily have come into his hands, and he would have answered it. A very important omission, however, is the failure of the appellant to examine Mr. C. B. McYay, then and now the secretary and treasurer of the company. At one time he seems to have been the officer who conducted the correspondence relating to this matter. He it was who wrote the letters of 4th January, 1890, and of 7th January, 1890, signing each with the name of the Fidelity Company, “Per C. B. McYay, Treas.” By the first of these, the Robert Poole A Son Co. were requested to remit the amount due Long A Co., “'under assignment” of the Lawrence Bank, and enclosed was the certificate of the assignment. On the sixth the Pooles replied, enclosing letter of their counsel, advising them it would not he safe in paying the claim of the Fidelity Company. That company replied, “per C. B. McYay, Treas.”, regretting “that we will be compelled to take other measures.” Willock testifies that during the years 1890 and 1891, the correspondence relating to the affairs of the Lawrence Bank, was conducted by McVay and Ewing; Brown, that in 1889 and 1890 McVay “had charge of the correspondence principally,” but in 1890 and 1891, that relating to the Lawrence Bank was conducted by himself and Mr. Ewing “principally;” and Mr. Ewing, that the correspondence of the Lawrence Bank was in his charge in the latter part of 1889, and since then it has been conducted by him, but McVay “wrote a few letters which were simply demands for payment;” and later on, he states, he “cannot give the names of all persons who may have conducted a correspondence relative to the affairs of the Lawrence Bank during 1889, 1890, 1891, hut everything of a legal nature was done hy Mr. McGill” and himself.

Thus it appears that not only did McVay write these two letters and receive the reply to the one which was responded to, (and excepting the letter in question, this comprised the entire correspondence of the year 1890 of the Fidelity Company -with the Robert Poole dr Son Company,) but that he has had more or less to do with the correspondence of affairs relating to the Lawrence Bank ever since. Mr. Burt states that since he was connected with the Fidelity Company, (February, 1891,) that correspondence was “conducted by both Mr. Ewing and Mr. McVay.” These facts taken in connection with the further fact, that he was the secretary of the company, makes it reasonable to infer that he, of all the other officers of the Company, would be likely to know something of this letter, if it had been received. In 1890, the letter may have come to him, as did the letter of the Robert Poole & Son Company of the sixth of January, and as he was the secretary of the company, he was the proper person to receive and open all correspondence. The letter may have been misplaced or lost, and in that event, if it had been received by him, he only could testify as to its receipt. We regard him, therefore, as an essential witness in this inquiry, and the omission to call and examine him is fatal. Without his statement, the evidence of the other persons are mere negations, amounting to not much else than averments that they know nothing of the letter in question. He, of all others, the one most likely to have knowledge of a positive kind, is not produced and sworn, though still in the service of the company, and presumably in the full possession of all his faculties. Being therefore of the opinion that the appellant has failed to rebut successfully the presumption of the receipt of this letter, created by the evidence offered by the appellees, we are constrained to hold that the Fidelity Company must he charged with notice of the laying of the attachment as far hack as the date of that letter, that is to say, from March, 1890.

(Decided 16th March, 1893.)

The order of the Court below dismissing the petition of the appellant must therefore he affirmed. We will add, however, without intimating any opinion upon the merits of the case, that, though the appellant he precluded from the relief it seeks in this proceeding, yet, inasmuch as it was not a party to the attachment, it has a full and complete remedy to recover the fund in dispute, if it can make it appear it is legally entitled to it.

Order affirmed.