Merchants' Exchange Co. v. Sanders

84 S.W. 786, 74 Ark. 16, 1905 Ark. LEXIS 392

Opinion

McCueeoch, J.,

(after stating the facts.) The only question at issue is whether or-not the order was countermanded. The order, until accepted by appellant, was not a contract of purchase, but merely a proposal, subject to withdrawal at any time before acceptance. Mechem, Sales, § 252.

The mailing of the letter countermanding the order raises the prima facie presumption that the same was duly received by the person to whom it was properly addressed, and places upon him the burden of showing that it was not so received. Burlington Ins. Co. v. Threlkeld, 60 Ark. 539; Click v. Sample, 73 Ark. 194; 4 Am. & Eng. Enc. Law, pp. 424, 425; 7 Am. & Eng. Enc. Law, p. 135; 19 Am. & Eng. Enc. Law, p. 608, and cases there cited.

Was this presumption overcome by appellant? „ The jury found that it was not, and we must draw the strongest inference in favor of that finding that the jury were warranted in deducing from the evidence. Marshall v. Dossett, 57 Ark. 93; Robson v. Tomlinson, 54 Ark. 229; Riggin v. Wolf, 53 Ark. 537; McCoy v. State, 46 Ark. 141; St. Louis, I. M. & S. Ry. v. Rice, 51 Ark. 467.

The testimony of witness Táylor only shows that he did not receive the letter. .He does not show that it might not have been received by some other person in authority connected with the appellant, but, on the contrary, his testimony appears somewhat evasive on that point. He does not state that he had exclusive charge of the correspondence of appellant, or that all communications directed to appellant were usually delivered to him. There is nothing whatever in his testimony to rebut the presumption that the letter written by appellee might not have been received by some other officer, agent or employee of appellant authorized to receive it. Railroad Co. v. Chriscoe, 57 Ark. 192.

The judgment is therefore affirmed.