Morton v. Morris , 31 Ga. 378 ( 1860 )

By the Court. —

Lumpkin, J.,

delivering the opinion.

Under all the circumstances, we think it best to' remand this case for a re-hearing. We are not satisfied that the rule of law regulating this transaction was correctly laid down by the Court. Instead, a majority of the Court are inclined to hold that it was not; and we feel quite sure that, upon another trial, the evidence could be made more satisfactory.

Mr. Morris’ note was payable at Charleston. Mr. Morton requested him, by letter, to remit the amount, adding, in a postscript, “Please send us a draft if possible.” The amount of the note was inclosed in a letter and mailed at Spring. Place* the residence of Morris. The letter containing the money was duly registered at the post-office. Whether it was sealed, does not appear.

The rule of law regulating this case is thus stated, with but little variation, in all the text-books: “Payment is often made by letter, and the question arises, at whose risk it is, when so made? This must depend upon circumstances; but in general, the debtor is discharged, although the money do not reach the creditor, if he was directed or expressly authorized by the creditor so to send it, or if he can distinctly derive such authority from its being the usual course of business, and not otherwise, 1 Parson’s on Contracts, 132.

And Mr. Greenleaf says: “When payment is made by a remittance by post to the creditor, it must be shown on the part of the debtor that the letter was properly sealed and directed, and that it was delivered into the post-office, and not to a private carrier or porter. He must also prove either the express direction of the creditor to remit in that mode, or a usage, or course of dealing, from which the authority of the creditor may be inferred. Where these circumstances concur, and a loss happens, it is the loss of the creditor.” 2 Green If. Ev. §525.

Both writers cite the same authorities, namely: 1 Peake 67; Id. 186; Ry. & M. 149; Peake on Ev. by Norris, 412.

' It would seem, therefore, that a remittance by post is no discharge, unless there be express authority to send in that mode, or can be inferred from the usual course of business. Indeed, it has been held, that sending bank notes uncut,. by direction, will not discharge the debtor; because it is usual among prudent people to cut such securities in halves, and send them at different times.

It is clear, that to remit does not ex vi termini mean to transmit by mail. Its etymological signification is to send money by bills, check or otherwise, from one person to another, at a distance more or less remote from each other. Mr. Green-leaf does not so understand it; otherwise, he would not be guilty of the tautological blunder of using the phrase, “remittance by post.”

Perhaps proof can be made upon another trial, that such was 'the usual way of transmitting funds from Spring' Place to Charleston, and that it was known to Mr. Morton. That it is not the only mode, is quite certain; for not only might private agency be resorted to, but the remittance by express is more reliable; and then the company is liable for loss, which the post-office is not.

As we can not, then, direct a re-argument without ordering a new trial, we prefer to' give this case that direction, rather than endorse the doctrine as laid down by the Court in its charge to the jury.

We would suggest, that some effort be made to ascertain whether this letter reached the post-office at Charleston.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court that the judgment of the Court below be reversed, upon the ground that the Court erred in not granting a new trial in this case.