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Opinion of the Court.

received by the person to whom it was addressed. Saunderson v. Judge, 2 H. Bl. 509; Woodcock v. Houldsworth, 16 M. & W. 124; Dunlop v. Higgins, 1 H. L. Cas. 381; Callan v. Gaylord, 3 Watts, 321 ; Starr v. Torrey, 2 Zabr. 190; Tanner v. Hughes, 53 Penn. St. 289; Howard v. Daly, 61 N. Y. 362; Huntley v. Whittier, 105 Mass. 391." See also Henderson v. Carbondale Coal and Coke Co., 140 U. S. 25.

And yet, under the circumstances of this case, we cannot think that the jury were misled, or that the instruction was erroneous. Ordinarily where the evidence shows that goods passed into the store of defendants, and were received by their agents, it would be held that a purchase was established; but when, as here, the direct testimony shows that the goods were thus passed into the store of defendants surreptitiously, by collusion with one of their employés, the presumption otherwise existing is overthrown, and by special instructions to divert their attention from the positive testimony as to the circumstances under which the goods were thus placed in the store, to the inference which would arise from the unexplained receipt of the goods, would be very apt to mislead a jury. The attention of the jury should rather be directed to the direct testimony, as to the circumstances under which the goods were passed into the store of the defendants, and to the actual knowledge on the part of the defendants of the receipt of the goods. So while the mailing of a letter creates an inference, raises a presumption that the party to whom it was addressed received it in due course of mail, and thus acquired knowledge of the matters stated therein, yet such presumption is one of fact, not of law. It is not conclusive, but subject to control and limitation by other facts. The undisputed testimony was, that the letters (of which hundreds were received daily) were not taken and examined by the defendants personally, but received and distributed by their corresponding clerk; that statements of goods purchased for the “cloak department" would, by the custom of business, pass into the hands of Hewes, the party who was engaged in these transactions; and that they should have passed from him 0. K.'d, to the book-keeper; but that none ever did reach the latter. Under

Opinion of the Court.

those circumstances, to instruct that the mailing of these statements creates a presumption that the defendants personally received them, and were thus notified of the purchases being made by Hewes, would probably have misled the jury. When a letter is duly mailed a presumption arises that it is delivered; but that presumption is that it is delivered in the usual course of business; and when the usual course of business is for an agent of a party to receive his mail, the presumption is that the agent received it rather than the principal. Here the testimony shows that the usual course of business sent the letters containing these statements into the hands of Hewes, the wrongdoer; and he testifies that he turned no statements over to his principals, and gave them no information until after the close of these transactions. There is surely no presumption that the ordinary course of business in the establishment of defendants was departed from in the present case. There is no presumption that the defendants themselves received the mail, or distributed it, or that the corresponding clerk in these instances departed from the usual course of business, and handed these special letters to his principals. And an instruction which would lead the jury to suppose that from the fact of mailing all the other presumptions arising from the ordinary course of business in the establishment of defendants were to be ignored, would be incorrect in law, as well as misleading

These are the only specifications of error, other than those involved in the general merits of the case, which we deem it necessary to mention. We see no error in the proceedings. The judgment was right, and it is

Affirmed.

Opinion of the Court.

GREGORY CONSOLIDATED MINING COMPANY v.

STARR

SAME v. SAME.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA.

Nos. 356, 357. Submitted April 29, 1891. – Decided May 25, 1891.

It being apparent that the proceedings in this court were for delay, No.

356 is affirmed with ten per cent damages, and No. 357 is dismissed, the court being without jurisdiction.

The case is stated in the opinion.

Mr. Edwin W. Toole and Mr. William Wallace, Jr., for plaintiff in error.

Mr. W. F. Sanders for defendant in error.

Mr. Justice BREWER delivered the opinion of the court.

On July 28, 1883, the Ætna Iron Works of San Francisco entered into a contract with the Gregory Consolidated Mining Company to build and equip for it at Gregory, Montana, a complete concentrating mill of specified capacity. The contract provided that the mill“shall be completed and delivered in perfect running order within four months from date, provided the lumber required to be used in constructing the building and placing the machinery therein is delivered on the ground at Gregory aforesaid

within forty days after the receipt of the bill for said lumber by H. W. Child, representing said party of the second part.” In consideration of this the mining company agreed to pay twenty thousand dollars upon receipt at Helena, Montana, of a bill of lading showing a shipment of the machinery from San Francisco, and the sum of thirty thousand dollars in three equal instalments, “in thirty, sixty and ninety days from the acceptance, upon completion, of said mill, by said party of the second part.” The

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Opinion of the Court.

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twenty thousand dollars was paid on receipt of the bill of lading; but the three instalments of ten thousand dollars each were none of them paid, and these actions were brought to recover those instalments. No. 357 on our docket, though later in number, was the first action commenced in the District Court of Montana, and was to recover the first instalment. No. 356 was commenced some months thereafter, and was to recover the last two instalments. It was commenced later, was tried later, and judgment was rendered at a later day; but, somehow, it occupies an earlier position on our docket. The differences between the two cases are these: No. 356 was tried by a jury; No. 357, by the court without a jury. In No. 356 a foreclosure of a mechanic's lien was sought; but not in 357. The answer in the suit for the second and third instalments, No. 356, claimed damages for the failure to complete the mill within the time specified in the contract. With these exceptions the cases are substantially identical. The testimony in the two cases was practically the same, being mainly by depositions. Both cases are brought to this court by writ of error. As one of them, No. 357, was tried by the court without a jury, it could only be brought here by appeal. Hecht v. Boughton, 105 U. S. 235; Act of April 7, 1874, 18 Stat. p. 27, c. 80, sec. 2. We have, therefore, no jurisdiction over this case. As to both of them, it may also be observed, that the requirements of section 997, Revised Statutes, and Rule 21 of this court, as to the assignment and specification of errors, have been ignored. The only suggestion in respect to error presented by either record is that made in the statement of appeal from the District to the Supreme Court of the Territory; and the briefs filed in this court by the plaintiff in error were the same as were filed in the Supreme Court of the Territory without compliance with Rule 21, and with even inaccurate references to the pages of the record on which the specifications in the statement of appeal to the Supreme Court of the Territory are found. We could properly dispose of these cases on the ground of this disregard of the requirements of the statute and rules; but ten per cent damages are asked under clause 2 of rule 23, and, therefore, we pass to

Opinion of the Court.

inquire what are the real merits of this controversy, and what are the errors which in any way are suggested by the record.

There is no doubt as to the sufficiency of the complaints. Indeed, no objection was made to them. Upon the general merits of the

case,

it
may

be observed that the answers first denied the transfer from the Ætna Iron Works to plaintiff. One witness, himself interested in the iron works, testified to the transfer; and there was no testimony even tending to gainsay this. The answers also denied the making of the contract. The assistant general manager of the mining company was called as a witness, identified the contract, and testified to its execution by himself for the mining company. The testimony is undisputed, not only that the mill was built and equipped, but also that it was accepted and operated by the defendant. A letter from Prof. Hesse was in evidence, signed by him as superintendent of the Gregory Smelter, informing the Iron Works of the completion of the contract; his entire satisfaction with the work done ; that the concentrator was of larger capacity than that called for by the contract; and that the building was substantially and well built, and the machinery of first-class workmanship. The party who represented the Iron Works in this transaction testified that Child, the assistant general manager of the mining company, told him he must please Hesse in the construction of the mill; and that if the mill was acceptable to Hesse, it would be to the company. Hesse testified that he showed his letter of acceptance to Child, and that he made no objection to it, and that he accepted it on April 18, 1884. And Child, the assistant general manager, himself, when called as a witness, testified that Hesse was at the time of the building of the mill his representative at the works. Under these circumstances, it does not admit of doubt that the judgments were right, and that substantial justice was done thereby.

If we pass to a consideration of the special matters of objection we find nothing which presents even technical error. It is insisted that the court erred in overruling the objection of defendant to three questions and answers in the deposition of D. H. Malter, the party who represented the Iron Works in

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