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Macwhinney v. Jacobson

Decided: October 17, 1932.

EVERETT G. MACWHINNEY, RESPONDENT,
v.
HERMAN JACOBSON, APPELLANT



On appeal from the Supreme Court, whose per curiam opinion is reported in 9 N.J. Mis. R. 958; 156 A. 281.

For the appellant, Merritt Lane.

For the respondent, Orlando H. Dey.

Parker

The opinion of the court was delivered by

PARKER, J. The general facts pertinent to the controversy appear in the opinion of the Supreme Court, and need not be repeated here. The gravemen of the appeal was, and is, the exclusion of a letter claimed by defendant to have been sent to plaintiff in reply to a registered letter from plaintiff to defendant. The Supreme Court passed the question whether there was sufficient evidence for the jury of the mailing and receipt of defendant's letter, holding that even if it had been received, and if it was error to exclude it, such error was not harmful and should not work a reversal.

We conclude that there was sufficient evidence of the mailing of the letter and a consequent presumption of its receipt, to make that matter a question for the jury and the letter itself a legitimate piece of evidence; and that the exclusion of it was legally injurious.

On the phase of the case to which the letter was pertinent, the defense was, in substance, accord and satisfaction, pleaded as the "first separate defense." The answer avers that "on or about July 29th, 1928, plaintiff made certain claims against defendant and this defendant denied that he was indebted to said plaintiff in any sum whatsoever, and on said date the defendant paid to the plaintiff the sum of $200, advising the plaintiff that he disputed that he was indebted to him in any sum whatsoever, and the said sum of $200 was received by the plaintiff in full accord and satisfaction of any claim that the plaintiff might have against the defendant."

We read this as inclusive of all claims, whether accrued or to accrue out of the relations between the parties. Defendant still held several stocks unsold, which plaintiff claimed, and defendant denied, had been bought on plaintiff's recommendation, so that if plaintiff was entitled to share in any profit thereon, the amount coming to him was not then ascertained; but these stocks had been sold before the correspondence of 1929 presently to be considered, and the balance claimed by plaintiff in the suit related substantially to them. So the defense was that all claims then liquidated, or to be liquidated, arising out of purchases previously made at plaintiff's instance, were covered by this accord and satisfaction. Defendant therefore claimed that the $200 was paid and received to close all controversy on that score. A pertinent fact is that defendant had carried a note of plaintiff endorsed by plaintiff's wife, in defendant's bank for about a year, and, growing tired of renewals, had notified plaintiff to take it up, and allowed it to go to protest.

That there was some agreement between the parties about the $200 check, appears from a letter from defendant's company to plaintiff, addressed to his New York address and put in evidence by him, dated July 18th, 1928, and reading: "We are enclosing herewith check in the sum of $200 as per arrangements with Mr. Jacobson."

On January 22d, 1929, plaintiff signed and his wife endorsed a renewal of the $500 note at sixty days. This note,

as has been said, went to protest, and at this point begins the correspondence of which the rejected letter, if written and received, forms a part, and which is best reproduced in full:

"NEVADA CONSOLIDATED COPPER COMPANY, 25 Broad Street, New York

March 28, 1929.

"Mr. Herman Jacobson Central Lumber Company Elizabeth, N.J.

Dear Mr. Jacobson:

"Mrs. MacWhinney has telephoned me that she has received from you a notice that my note for $500 has gone to protest. Do you think such action is quite fair when I have been trying for two months to see you to get our affairs straightened out. We had certain definite agreements -- one of which was that you were to pay me 20% of the profits in Lehigh Coal & Navigation stock. This stock was sold about February 1st last at a substantial profit to you. To date you have refused to see me or even talk to me on the telephone, in spite of my constant efforts to reach you. In view of our past pleasant and mutually profitable relations, I cannot believe that ...


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