Morgan v. Richardson

95 Mass. 410

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1866
• Status: Published

Opinion

Bigelow, C. J.

We cannot say that on the facts the finding of the court below was erroneous. The question presented at the trial was a mixed one of law and fact. There was evidence derived from the previous negotiations and dealings between the parties in relation to the subject matter out of which the present claim arises, that the defendant was authorized to remit the money by mail. The plaintiff selected that .mode of communicating with the defendant, and transmitted to him thereby, not only a small sum of money in the course of the transactions between them, but also the execution issued on the judgment against his debtor, which was the highest evidence of his claim, and in the nature of a direct security therefor. This was accompanied with a direction to collect and remit the amount. These facts were sufficient to lead the defendant to believe that he was authorized by the plaintiff to remit by mail, and warranted the court below in finding that the defendant was not liable in this action. The rule is well settled that if a person to whom money is due, either by express assent or direction, or a course of dealing from which such assent may be inferred, authorizes its transmission by mail, the person from whom it is due is absolved by evidence that it was duly deposited with a proper direction in the post-office. Gurney v. Howe, 9 Gray, 404, 408, and cases cited. Exceptions overruled.