Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 5741, former Code 1933, § 38-120, and former O.C.G.A. § 24-4-23 are included in the annotations for this Code section.

Constitutionality.

- For a statutory presumption to pass constitutional muster, it must be shown with "substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Benham v. Edwards, 501 F. Supp. 1050 (N.D. Ga. 1980), aff'd in part and vacated in part on other grounds, 678 F.2d 511 (5th Cir. 1982), vacated, 463 U.S. 1222, 103 S. Ct. 3565, 77 L. Ed. 2d 1406 (1983) (remanded for further consideration in light of Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (decisions under former Code 1933, § 38-120)).

Principle of former Code 1933, § 38-120 was the same as that expressed more generally in former Code 1933, § 38-409 (see now O.C.G.A. § 24-8-801): "acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission." Metropolitan Life Ins. Co. v. Shalloway, 151 F.2d 548 (5th Cir. 1945) (decisions under former Code 1933, § 38-120).

Former O.C.G.A. § 24-4-23 was applicable only when two parties have carried on mutual correspondence in reference to a particular matter, and one of the parties had written a letter to the other making statements concerning a subject of which the latter had knowledge, and which the latter would naturally deny if true. Defendants could not rely upon their unilateral actions to establish a mutual correspondence. Smith v. Freeport Kaolin Co., 687 F. Supp. 1550 (M.D. Ga. 1988) (decisions under former O.C.G.A. § 24-4-23).

Question was whether the evidence showed a due course of business as to warrant the application of former O.C.G.A. § 24-4-23; the phrase "due course of business" was construed to apply to those cases where two parties have carried on a mutual correspondence in reference to a particular matter, and one of the parties wrote a letter concerning a matter which the other would naturally deny if not true. Godwin v. Caldwell, 231 Ga. App. 523, 500 S.E.2d 49 (1998) (decisions under former O.C.G.A. § 24-4-23).

Rebuttable presumption of fact.

- Presumption of this former statute was not an irrebuttable presumption of law, but one of fact, and the failure to reply was subject to explanation. Metropolitan Life Ins. Co. v. Shalloway, 151 F.2d 548 (5th Cir. 1945) (decisions under former Code 1933, § 38-120); Whitaker v. Paden, 78 Ga. App. 145, 50 S.E.2d 774 (1948); Georgia Health Care, Inc. v. Loeb, 151 Ga. App. 350, 259 S.E.2d 734 (1979) (decisions under former Code 1933, § 38-120);(decisions under former Code 1933, § 38-120).

Presumption arising from a failure to answer a letter was not a presumption of law, but one of fact, and subject to explanation. Godwin v. Caldwell, 231 Ga. App. 523, 500 S.E.2d 49 (1998) (decisions under former O.C.G.A. § 24-4-23).

Excuses for not answering.

- Fact that plaintiff failed to answer a letter written to plaintiff by agent of an insurance company being in evidence, it was competent for plaintiff to explain why plaintiff did not answer, though a part of the explanation was that plaintiff's counsel advised plaintiff not to answer. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18 (1890) (decisions under former law).

An exchange of several letters was not always necessary to establish mutual correspondence; thus, plaintiff contractor's letter which mentioned outstanding invoices and which followed two letters from defendant concerning problems with the contractor's product and requesting service was sent in the ordinary course of business and a charge under former O.C.G.A. § 24-4-23 was warranted. Crotts Enters., Inc. v. John Payne Co., 219 Ga. App. 173, 464 S.E.2d 844 (1995) (decisions under former O.C.G.A. § 24-4-23).

Silence regarding terms of agreement.

- Physician had a duty and obligation to respond to limitations on the physician's privileges set forth in an agreement with a hospital, and when the physician silently exercised the privileges for several years, the physician waived the physician's right to insist on compliance with other procedural requirements pertaining to the physician's termination. St. Mary's Hosp. v. Cohen, 216 Ga. App. 761, 456 S.E.2d 79 (1995) (decisions under former O.C.G.A. § 24-4-23).

Construction of lease agreement.

- When a lessee informed the lessor, by means of three annual letters, of the construction the lessee was placing on a provision of the lease agreement, and received no reply from the lessor, the lessor was precluded from relying on a different interpretation, since it was incumbent upon the lessor to advise the lessee that the lessor disagreed with the lessee's construction of the agreement. Wiggins v. Engelhard Minerals & Chems. Corp., 328 F. Supp. 33 (M.D. Ga. 1970), aff'd, 443 F.2d 1358 (5th Cir. 1971) (decisions under former Code 1933, § 38-120).

Settlement agreement.

- Trial court erred in granting the insureds' motion to enforce a settlement agreement a parent and an administrator allegedly reached with an insurer because the insurer's tender was not sufficient to constitute acceptance of the settlement offer; the attorney for the mother and the administrator was not silent but stated the intent to consult with the parent and the administrator, the attorney committed to no deadline for responding, and the terms of the offer were in writing and equally known to all parties. Kitchens v. Ezell, 315 Ga. App. 444, 726 S.E.2d 461 (2012) (decisions under former O.C.G.A. § 24-4-23).

Letter memorializing a conversation, to which recipient failed to respond, was admissible as an admission by silence.

- Trial court did not err in allowing an attorney to read a letter memorializing a conversation between the attorney and a decedent because the out-of-court statement of the decedent referenced in the letter was admissible as an admission by silence of the executor when the attorney mailed a package containing closing documents to the executor, including a receipt the decedent had executed, and the executor mailed a check to the attorney based on the erroneous assumption that the executor needed to do so in order to pay off the advance that had been received and was referenced in the receipt; the attorney mailed the letter to the executor, returned the check, and set forth the conversation with the decedent concerning the intent behind the receipt, and the executor's failure to respond could be construed as an acquiescence to the construction of the receipt set forth in the letter. Jerkins v. Jerkins, 300 Ga. App. 703, 686 S.E.2d 324 (2009) (decisions under former O.C.G.A. § 24-4-23).

Instructions.

- It was not error for the court to fail to give in charge to the jury the provisions of the former statute, there having been no timely written request of such instructions. White Crown Fruit Jar Co. v. Cox Co., 19 Ga. App. 195, 91 S.E. 245 (1917) (decisions under former Civil Code 1910, § 5741).

Trial court properly charged a jury regarding the former O.C.G.A. § 24-3-36 (see now O.C.G.A. § 24-8-801) evidentiary presumption arising from a limited liability company's (LLC's) agent's failure to reply to a corporation's invoices because the LLC admitted receiving some of the corporation's goods and services, only disputing the amount due, and the failure to respond to an invoice was not a declaration against the LLC's interest pursuant to O.C.G.A. § 10-6-64; in addition, the charge was supported by former O.C.G.A. § 24-4-23. Forrest Cambridge Apts., LLC v. Redi-Floors, Inc., 295 Ga. App. 840, 673 S.E.2d 318 (2009) (decisions under former O.C.G.A. § 24-4-23).

Am. Jur. 2d.

- 29A Am. Jur. 2d, Evidence, § 815.

ALR.

- Admissibility in favor of writer of unanswered letter not part of mutual correspondence, 8 A.L.R. 1163; 34 A.L.R. 560; 55 A.L.R. 460.

Presumption as to delivery of letter from mailing other than at post office or in street letter box, 63 A.L.R. 931.

Character and sufficiency of evidence to show that letter was mailed, 86 A.L.R. 541.

Rebuttal of presumption of receipt of letter properly mailed and addressed, 91 A.L.R. 161.