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Dunn v. Goldman

Decided: September 27, 1933.

ABE J. DUNN AND ABRAHAM FRIEDMAN, PARTNERS, TRADING AS DUNN & FRIEDMAN, PLAINTIFFS-RESPONDENTS,
v.
SAMUEL GOLDMAN, DEFENDANT-APPELLANT; ALBERT GOLDMAN, DEFENDANT



On appeal from the First District Court of Jersey City.

For the plaintiffs-respondents, Charles C. Colgan.

For the defendant-appellant, Wallace P. Berkowitz.

Before Justices Parker and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This appeal brings up for review a judgment of the First District Court of Jersey City in favor of the plaintiffs-respondents, called hereinafter the plaintiffs, and against the defendant-appellant, called hereinafter the defendant, in the sum of $289.64.

The facts are as follows: A. Goldman & Company of Jersey City, made application to Dunn & Friedman, merchants, of New York City, for a line of credit. This was refused unless the account would be guaranteed. The son, Al. Goldman,

suggested the name of his father, S. Goldman, who resided at 50 Jackson avenue, Jersey City, New Jersey. Whereupon, on June 29th, 1931, plaintiffs mailed to the defendant at his home address aforesaid a form of guarantee for all merchandise that might be shipped to A. Goldman & Company to the amount of $500. Plaintiffs subsequently received this guarantee through the mail and later the son, Al. Goldman, while at their place of business in New York City, witnessed the guarantee and stated that the signature of "S. Goldman" was that of his father. On suit against the guarantor, S. Goldman testified that the signature was not his; that he did not authorize his son to sign it nor did he ratify it. Apart from the mailing and the return by mail of the paper-writing, the guarantee, the evidence is plenary that the purported signature of the guarantor was not in fact the genuine signature of "S. Goldman."

Motions for nonsuit and for a directed verdict were made for the defendant but were denied.

The plaintiff in support of their judgment rely on the case of Leunis Co. v. Singer, 102 N.J.L. 68, decided by Mr. Justice Black, the syllabus of which is stated as follows:

"A letter received in due course of mail apparently in response to a letter sent by the receiver, is presumed in absence of any showing to the contrary, to be the letter of the person or corporation whose name is signed to it. It is admissible in evidence, without proof of the defendant's handwriting, being an exception to the rule requiring proof of handwriting."

The application of the principle of law enunciated in the case of Leunis Co. v. Singer, supra, to the instant case depends upon the probative force or value of a legal presumption arising under the law. More succinctly stated, is a presumption arising under the law evidence -- or is it merely a rule concerning evidence? The authorities are not in accord.

In the case of Alpine Forwarding Co. v. Pennsylvania Railroad Co., 60 Fed. Rep. (2 d) 734; C.C.A. (2 d) 1932, the bailor of a barge raised the presumption of his bailee's fault by showing that the barge was returned in a damaged condition.

The defendant's attempt to prove due care consisted in vague and inconclusive testimony. The Circuit Court of Appeals of the Second Circuit, considering this an inadequate satisfaction of the defendant's burden, held that it was error not to have directed a verdict for the plaintiff; but since the jury has rendered the same verdict the error was not prejudicial. In the opinion, Judge Learned Hand took the view that the valuation of the evidence necessary to meet a presumption is entirely in the hands of the trial judge. Hence, if it be insufficient there must be a directed verdict for the plaintiff; if sufficient, the presumption is destroyed and the defendant has succeeded in getting back to the jury; if positive and uncontradicted, a directed verdict for the defendant is warranted. This view is in harmony with the Rhode Island decision of McIver v. Schwartz, 50 R.I. 68; 145 A. 101, which holds that a presumption is not evidence, and in the face of testimony to the contrary, cannot go to the jury. The court said:

"Had the defendant's testimony been entirely reasonable and consistent he would have been entitled to a ...


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