
26 U.S. 476 (____)
1 Pet. 476
JAMES D'WOLF, JUNIOR, PLAINTIFF IN ERROR,
vs.
DAVID JACQUES RABAUD, JEAN PHILIPPE FREDERICK RABAUD, ALPHONSE MARC RABAUD, ALIENS, AND SUBJECTS OF THE KING OF FRANCE, AND ANDREW E. BELKNAP, A CITIZEN OF THE STATE OF MASSACHUSETTS, DEFENDANTS IN ERROR.
Supreme Court of United States.

*485 The case was argued by Mr. Ogden and Mr. Jonathan Prescott Hall for the plaintiff in error, and by Mr. Webster and Mr. Charles C. King for the defendants.[*]
*486 Mr. Hall and Mr. Ogden for the plaintiff in error.
*494 Mr. Webster and Mr. King for the defendants.
*493 *496 Mr. Justice STORY, delivered the opinion of the Court. 
Messrs. Rabaud, Brothers & Co., of Marseilles, brought a suit in the Circuit Court of the southern district of New York, against James D'Wolf jun. (the plaintiff in error,) to recover damages, for not shipping them 500 boxes of sugar on account of one George D'Wolf, according to an agreement entered into by him with them. The declaration contained four counts, and in each of them the substance of the contract stated, is that the defendant, in consideration that one Belknap (one of the partners in the house of Rabaud, Brothers & Co.,) would authorize George D'Wolf to draw on the plaintiffs for 100,000 francs, undertook and promised, that he would ship for the account of George D'Wolf, on board such vessel as he, George D'Wolf should direct, five hundred boxes of white Havana sugar, consigned to the plaintiffs at Marseilles. The declaration then proceeds with the proper averments, and breaches, necessary to maintain the action: upon the trial, under the general issue, the jury found a verdict for the plaintiffs, and judgment was given for them accordingly. The cause now comes before this Court upon a writ of error, and bill of exceptions, taken at the trial.
The bill of exceptions is voluminous, and contains, at large, the evidence admitted at the trial, as well as the charge of the *497 learned Judge who presided at the trial. It is unnecessary to refer to that evidence, or to consider its nature bearing and extent, upon which so ample a comment has been made at the bar, except so far as it applies to some question of law decided by the Court, to which an exception has been taken. The whole facts were left open to the jury, and so far as they were imperfect, or inconclusive, the defendant has had the full opportunity of addressing his views to the jury, and they have found their verdict against him.
In the progress of the trial, a letter of the 27th December 1825, written by George D'Wolf to Belknap, was offered by the defendants in evidence, for the purpose of showing an authority from George D'Wolf to Belknap, to direct or name a vessel to the defendant, on board of which the sugars might be shipped. The defendant objected to its admission, and the objection was overruled. This constitutes the first ground of error, now insisted on by the defendant. We are of opinion that the letter was rightly admitted, for both of the reasons stated in the charge. It was evidence of such an authority; and the defendant made no objection to it at the time, on account of any insufficiency in this respect; but put his defence by his letter of the 5th of January 1826, on an entirely distinct ground.
After the evidence for the plaintiffs was closed, the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this Court. A nonsuit, may not be ordered by the Court, upon the application of the defendant, and cannot as we have had occasion to decide, at the present term, be ordered in any case without the consent and acquiescence of the plaintiff, Elmore vs. Grymes, ante, page 469. In the further progress of the trial, upon the examination of one Frederick G. Bull, a witness for the defendant, the counsel for the defendant offered to prove, by Bull, that it was an express understanding and agreement between the defendant and George D'Wolf, at the time the letter of the 15th November 1825 (which will be hereafter more particularly noticed,) was signed by the defendant; that the latter should furnish the defendant with the funds necessary for the purchase of the sugar, before the defendant would be under any obligation to ship the same. This testimony was rejected by the Court, unless it should also appear that Belknap was a party thereto, or that the same was brought home to his knowledge. We can perceive no error in this decision. If the defendant had entered into the contract with the plaintiffs, stated in the declaration, and the private arrangement made between the defendant and George D'Wolf, constituted no part of that contract, and was unknown to them, it certainly ought not to prejudice their rights. It was res inter alios acta; and had no legal *498 tendency either to disprove the plaintiffs' case, or to exonerate the defendant from his liability.
The other exceptions are exclusively confined to the charge given to the jury, upon the summing of the Court, upon points of law.
The first objection was to the sufficiency of the evidence to establish the citizenship of Belknap, as averred in the declaration. This is now waived by the counsel, and indeed could not now be maintained, because it has been recently decided, by this Court, upon full consideration, that the question of such citizenship constitutes no part of the issue upon the merits, and must be brought forward by a proper plea in abatement, in an earlier stage of the cause.
The great question upon the merits, arises upon that part of the charge, which relates to the agreement contained in the letter of the 15th of November 1825, from George D'Wolf to the defendant, and the accompanying assent of the latter, with reference to the statute of Frauds.
That letter is in the following terms. 
                                  New York, 15th November 1825.
MR. JAMES D'WOLF, JUN.
Dear Sir:  You will please ship for my account on board such vessel as I shall direct, five hundred boxes white Havana sugar consigned to Messrs. Rabaud, Brothers & Co. Marseilles, and oblige your friend and obedient servant,
                 (Signed)                        GEORGE D'WOLF.
Agreed to, (Signed) JAMES D'WOLF, JUN.
Upon this part of the case, the charge was as follows:  "It is said that this letter, under the statute of Frauds, does not purport on its face to contain any binding contract on the part of the defendant, and that the defects cannot be supplied by parol evidence. This objection I think cannot be sustained. The first question to be settled, and which is matter of fact for your determination is, whether the arrangement between Belknap and George D'Wolf, as to the authority to draw on the house in Marseilles, on the shipment and consignment of five hundred boxes of sugar, and the undertaking of the defendant, were made and entered into at one and the same time, so as to form one entire transaction." The Judge then proceeded to sum up the evidence on this point and added  "The consideration for this undertaking was the authority given by Belknap to George D'Wolf, to draw on the plaintiffs for one hundred thousand francs. This consideration, it is true, although fully proved, is not expressed in the written contract. And one question is, whether it can be supplied by parol evidence; and I think it may, if the undertaking of the defendant was entered into at *499 the same time, with that between Belknap and George D'Wolf, so as to form one entire transaction. The evidence does not, in any manner, contradict the written agreement; and is perfectly consistent with it; as between the plaintiffs and George D'Wolf the consideration might be clearly supplied by parol proof; and if the undertaking of the defendant was at the same time, it required no consideration from the plaintiffs to him, the consideration to George D'Wolf was sufficient to uphold and support the contract of the defendant." And he finally stated if he was mistaken in this view of the evidence "and the jury should be of opinion, that the contract between Belknap and George D'Wolf, was completed, and unconnected with the engagement of the defendant, before he undertook to make the shipment and consignment; then the evidence was not sufficient to maintain the present action. It will then be a collateral undertaking, made subsequent to the principal contract, and would require some other consideration than that which supported the principal contract."
The question then, so far as it was a question of fact, whether the defendant did enter into the asserted agreement with the plaintiffs and whether it was a part of the original arrangement, with George D'Wolf, and upon the original consideration moving from the plaintiffs, was before the jury, and they have found in the affirmative. The question of law remains, whether this was a case within the statute of Frauds, so as to prevent parol evidence from being admissible, to charge the defendant.
The statute of Frauds of New York, is a transcript, on this subject, of the statute of 29th of Charles 2, ch. 3. It declares "that no action shall be brought to charge a defendant on a special promise for the debt, default or miscarriage of another, unless the agreement, or some memorandum or note thereof be in writing and signed by the party, or by any one by him authorized." The terms "collateral" or "original" promise, do not occur in the statute, and have been introduced by Courts of law to explain its objects and expound its true interpretation. Whether by the true intent of the statute, it was to extend to cases where the collateral promise, (so called,) was a part of the original agreement, and founded on the same consideration moving at the same time between the parties; or, whether it was confined to cases, where there was already a subsisting debt and demand, and the promise was merely founded upon a subsequent and distinct undertaking; might, if the point were entirely new, deserve very grave deliberation. But it has been closed within very narrow limits by the course of the authorities, and seems scarcely open for general examination; at least in those states where the English authorities have been fully *500 recognised and adopted in practice. If A agree to advance B a sum of money, for which B is to be answerable, but at the same time it is expressed upon the undertaking, that C will do some act for the security of A, and enter into an agreement with A for that purpose; it would scarcely seem a case of a mere collateral undertaking; but rather, if one might use the phrase, a trilateral contract. The contract of B to repay the money, is not coincident with, nor the same contract with C to do the act. Each is an original promise, though the one may be deemed subsidiary, or secondary to the other. The original consideration flows from A, not solely upon the promise of B or C, but upon the promise of both, diverso intuita, and each becomes liable to A, not upon a joint but a several original undertaking. Each is a direct, original promise, founded upon the same consideration. The credit is not given solely to either, but to both; not as joint contractors, on the same contract, but as separate contractors upon co-existing contracts, forming parts of the same general transaction. Of that very nature is the contract now before the Court; and if the intention of all the parties was, that the letter of the 15th of November should be delivered to Belknap, as evidence of the original agreement between all the parties, and indeed as part execution of it, to bind the defendant not merely to George D'Wolf, but to the plaintiffs; (and so it has been established by the verdict;) then it is not very easy to distinguish the case from that which was put.
But assuming that the true construction of the statute of Frauds is, as the authorities seem to support, and that such a promise would be within its purview; it remains to consider whether the arguments at the bar do establish any error in the opinion of the Circuit Court.
In the first place, there is no repugnance between the terms of that letter and the parol evidence introduced. The object of the latter was to establish the fact, that there was a sufficient consideration for the agreement; and what that consideration was, and also the circumstances under which it was written, as explanatory of its nature and objects. Its terms do not necessarily import, that it was an agreement exclusively between George D'Wolf and the defendant. If the paper was so drawn up and executed, by the assent of all the parties, for the purpose of being delivered to Belknap, as a voucher, and evidence to him of an absolute agreement by the defendant to make the shipment, and so was in fact understood by all the parties at the time; there is nothing in its terms inconsistent with such an interpretation. The defendant agrees to the shipment. But with whom? It is said with George D'Wolf alone; but that does not necessarily follow, because it is not an instrument in its terms inter partes. If the parties intended that it should express the joint assent *501 of George D'Wolf and the defendant, to the shipment, and it was deliverable to Belknap accordingly, as evidence of their joint assent that it should be made upon the terms and in the manner stated in it, there is nothing which contradicts its proper purport; and it is then, precisely, what the parties require it to be. It was for the jury to say, whether the evidence disclosed that as the true object of it; and to give it effect accordingly, as proof of an agreement in support of the declaration. The case of Sargent vs. Morris, (3 Barn. & Ald. 277) furnishes no uninstructive analogy for its admission.
In the next place, was the parol evidence inadmissible to supply the defect of the written instrument, as to the consideration, and res gestæ, between the parties. The case of Wain vs. Warlters, (5 East, 10,) was the first case which settled the point, that it was necessary to escape from the statute of Frauds, that the agreement should contain the consideration for the promise, as well as the promise itself. If it contained it, it has since been determined that it is wholly immaterial whether the consideration be stated in express terms, or by necessary implication. That case has from its origin encountered many difficulties, and been matter of serious observation both at the bar, and on the bench, in England and America. After many doubts, it seems at last in England, by the recent decisions of Saunders vs. Wakefield, (4 Barn. & Ald. 595) and Jenkins vs. Reynolds, (3 Brod. & Bing. 14,) to have settled down into an approved authority. It has however assumed a uniform recognition in America; although in several of the states, and particularly in New-York, it has to a limited extent been adopted into its jurisprudence, as a sound construction of the statute. On the other hand, there is a very elaborate opinion of the Supreme Court of Massachusetts, in Packard vs. Richardson (17 Mass. 122,) where its authority was directly overruled. What might be our own view of the question, unaffected by any local decision, it is unnecessary to suggest; because the decisions in New-York, upon the construction of its own statute, and the extent of the rules deduced from it, furnish, in the present, a clear guide for this Court. In the case of Leonard vs. Vredenburgh, (8 John. R. 29.) Mr. Chief Justice Kent, in delivering the opinion of the Court, adverting to the fact that that case was one of a guarantee, or promise collateral to the principal contract, but made at the same time, and becoming an essential ground of the credit given to the principal or direct debtor; added, "and if there was no consideration other than the original transaction, the plaintiff ought to have been permitted to show that fact, if necessary by parol proof; and the decision in Wain vs. Warlters, did not stand in the way."
One of the points in that case was, whether the parol proof *502 of the consideration was not improperly rejected at the trial and the decision of the Court was, that it ought to have been admitted. It is not therefore, as was suggested at the argument a mere obiter dictum, uncalled for by the case. It was one, though not the only one of the points in judgment before the Court. The same doctrine has been subsequently recognised by the same Court in Bailey vs. Freeman, (11 Johns. R. 221,) and in Nelson vs. Dubois, (13 Johns. R. 175.)
It does not seem necessary to pursue this subject farther, because here is a clear authority justifying the admission of the parol evidence, upon the principal of the local jurisprudence It seems to us a reasonable doctrine, founded in good sense and convenience, and tending rather to suppress than encourage fraud. But whether so, or not, it sustains the opinion of the Circuit Court, in a manner entirely free from exception.
The next objection to the charge, founded on the variance between the declaration and proofs, has been abandoned at the argument, and need not be dwelt upon. And the last objection, to wit., to the designation of a vessel for the shipment as ineffectually made, has been already in part answered; and we entirely coincide with the views expressed on this point, by the Circuit Court.
Without therefore going more at large into the points of the case, or commenting upon the various authorities and principles so elaborately brought out in the discussions at the bar, it is sufficient to say, that we perceive no error in the judgment of the Circuit Court, and it is therefore to be affirmed with costs.
NOTES
[*]  The following charge was delivered by Mr. Justice THOMPSON to the jury 

This case is of considerable importance in point of amount, and may be considered as a struggle between two innocent parties to throw off from their own shoulders a loss which must fall upon one or the other, by reason of the failure of George D'Wolf. In such cases, it is reasonable to expect that each party will urge with great zeal the points relied on to effect his object.
It has been distinctly stated by the counsel, that situated as this cause is, it is not probable that a decision here will put an end to the controversy, but that it will be carried to the Supreme Court of the United States; and to enable the parties to avail themselves of their rights in this respect, and to take exceptions to the opinion I may express, it may be necessary for me not only to be explicit, but to repeat in some measure what I have already had occasion to say in disposing of the motion for a nonsuit.
The result in the present case will depend principally upon the questions of law which are involved, and with which you have no concern. Some of these questions are, however, so connected with facts which it is your province to decide; and for the purpose of enabling the parties to avail themselves of whatever exceptions they may have to take, many remarks may be made in the course of my charge to you, which, in strictness, are not to be addressed to a jury.
The first question arising is, whether the plaintiffs have shown themselves entitled, under the Constitution and Laws of the United States, to come into this Court to prosecute their action. It has not been denied but that all the plaintiffs except Belknap are aliens, and have a right to bring their suit in this Court. The declaration avers, that Belknap is a citizen of the state of Massachusetts, and it is contended on the part of the defendant, that this averment has not been proved.
From the evidence, it appears, that Belknap was either born in Boston, or removed there with his father, at a very early age, from New-Hampshire, and continued to live in Boston until he went to France, where he remained ten or twelve years, when he returned to Boston. That he is an unmarried man, having no family; lives at lodgings; has rooms, as one of the witnesses understood, hired by the year, and is there about, two-thirds of the time. The residue of the time he is absent on business of the firm of which he is a partner, principally in New-York and Philadelphia, and other cities of the United States. One of the witnesses testified, that on one occasion he went with him to town meeting to vote at an election, he did not see him vote, but understood he went there for that purpose. All the witnesses, in answer to the general question, where was the home of Belknap, say it was at Boston, that they should address him at that place as his place of residence if they did not know of his absence. That letters from abroad are addressed to him at that place. These are the leading and principal facts in evidence as to Belknap's being a citizen of Massachusetts. That he is a citizen of the United States cannot be questioned; and if a citizen of any particular state within the sense and meaning of the Constitution and Law, it must be of Massachusetts. No evidence has been offered to raise a doubt on this point. Whenever absent from Boston it was temporarily, and on the business of the plaintiffs; and to deprive an American citizen of the right of suing in this Court, on the ground of his not being a citizen of any particular state, there ought to be very strong evidence of his being a mere wanderer without a home. Belknap does not appear to stand in this situation. His domicil, his home, and permanent residence, may, with the greatest propriety, be said to be in Boston. There is no pretence that this was merely colourable, for the purpose of qualifying himself to bring this action; and to deprive him of that privilege would be extending this disability beyond the reason and policy of the law. The facts in relation to Belknap do not appear to be in dispute so far as I have understood them; and if, according to your understanding of the evidence, they are as I have stated, the averment that he is a citizen of the state of Massachusetts is sufficiently proved.
2. The next inquiry relates to the merits of the cause, and embraces the main question upon which the rights of the parties must be decided.
The action is founded on a special contract alleged to have been entered into by the defendant, and which he has not complied with. The declaration contains several counts, in which the cause of action is in some respects laid in different ways, but is substantially, that the defendant, in consideration that Belknap would authorize George D'Wolf to draw on the plaintiffs for one hundred thousand francs, undertook and promised to ship for account of George D'Wolf, on board such vessel as he should direct, five hundred boxes of white Havana sugar, consigned to the plaintiffs in this cause, accompanied with the necessary averments and allegations of breaches. And the great question is, whether this contract has been proved by such evidence as to make it legally binding on the defendant.
The letter of the 15th of November, 1825, from George D'Wolf to the defendant, requesting him to ship for his account five hundred boxes of white Havana sugar, consigned to the plaintiffs, and underwritten by the defendant "agreed to," is the principal evidence in this cause to establish the contract.
It is said, that this letter under the statute of Frauds, does not, on its face, contain any binding contract on the part of the defendant, and that the defects cannot be supplied by parol evidence. This objection, I think, cannot be sustained. The first question to be settled, and which is matter of fact for your determination, is, whether the arrangement between Belknap and George D'Wolf, as to the authority to draw on the house in Marseilles on the shipment and consignment of five hundred boxes of sugar, and the undertaking of the defendant, were made and entered into at one and the same time, so as to form one entire transaction. The evidence on this point rests principally on the deposition of George D'Wolf. For although Mr. Bull did not hear the defendant assent to the arrangement, yet, from his own statement, such an arrangement or contract might have been entered into by the defendant without his hearing it; it is, therefore, at most, but a negative kind of evidence, and ought not to outweigh the positive testimony of George D'Wolf, unless he is discredited in some way, of which you will judge. His testimony is in writing, and will be submitted to the jury when they withdraw to make up their verdict. They will read and judge for themselves. I understood him to say, that the defendant was with him when they first met in Wall street, and had some conversation about the authority to draw, and the shipment of the sugar, he, George D'Wolf, then stating to Belknap that he had between three and four hundred boxes of the sugar then in the defendant's possession; that a time was appointed to meet at the defendant's counting-house to negotiate further on the subject; that such meeting did take place, and the agreement then concluded, as contained in the letter of the 15th of November, 1825. The consideration for this undertaking was the authority given by Belknap to George D'Wolf, to draw on the plaintiffs for a hundred thousand francs. This consideration, it is true, although fully proved, is not expressed in the written contract. And one question is, whether it can be supplied by parol evidence; and I think it may, if the undertaking of the defendant was entered into at the same time with that between Belknap and George D'Wolf, so as to form one entire transaction. This evidence does not in any manner contradict the written agreement, but is perfectly consistent with it. As between the plaintiffs and George D'Wolf, the consideration might clearly be supplied by parol proof; and if the undertaking of the defendant was at the same time, it required no consideration moving from the plaintiffs to him; the consideration to George D'Wolf was sufficient to uphold and support the contract of the defendant. The undertaking of the defendant to make the shipment, was certainly the principal, if not the sole consideration upon which Belknap authorized the drafts on the plaintiffs; for George D'Wolf says expressly, that he does not believe the authority would have been given without such undertaking by the defendant; so that it might be urged with great force that the whole credit was given and rested on the engagement of the defendant to make the shipment. If the contract of the defendant was entered into at the counting-house at the time mentioned, it is of no consequence that the letter was not signed until the day after. This was only reducing to form, and putting into the shape agreed upon, and consummating the arrangement, and would have relation, as between these parties, to the time when the agreement was, in point of fact, entered into.
But if I should be mistaken in this view of the evidence, and the jury should be of opinion that the contract between Belknap and George D'Wolf was completed, and unconnected with the engagement of the defendant, before he undertook to make the shipment and consignment, then the evidence is not sufficient to maintain the present action. It would then be a collateral undertaking made subsequent to the principal contract, and would require some other consideration than that which supported the principal contract. Whether it is indispensable that such consideration should be expressed in the written agreement or not, it is unnecessary to decide, because no such consideration has been proved, if it was admissible to supply it by parol evidence.
3. It is said in the next place, that the plaintiffs have failed in establishing a right to recover in this action, by reason of a variance between the allegation in the declaration and the proof in support of it, in relation to the letter of advice from Belknap to his copartners, apprizing them of his having authorized the drafts of George D'Wolf. The declaration alleges, "that in consideration that the plaintiffs would authorize George D'Wolf to draw upon them for one hundred thousand francs, the defendant undertook and promised, &c." But that the written authority shown in evidence was in blank as to the sum to be drawn, and that in this consisted the variance.
This letter being in blank, cannot be set up as a variance between the allegation and the proof. The declaration does not state that the authority was in writing, or refer in any way to the letter in question; and George D'Wolf swears that he was authorized to draw on the plaintiffs for one hundred thousand francs. That in pursuance of such authority he did draw upon them for that sum, and his bills were accepted and paid. The drafts which accompanied the letter of advice showed the amount, and the bills having been paid, the blank is of no importance in the present action.
4. The next inquiry is, whether any vessel was designated to receive the sugars according to the terms of the agreement. By the contract, the sugars were to be shipped on board such vessel as George D'Wolf should direct. He, having become insolvent, wrote a letter to Belknap, authorizing him to make arrangement with the defendant on this subject, and to designate the vessel; which he accordingly did, and gave notice thereof to the defendant, and demanded the shipment of the sugars. This was amply sufficient. The authority reserved to George D'Wolf, to direct in what vessel the shipment should be made, was for his benefit, which he might waive. He was not bound personally to designate such vessel; he might do this by his agent, and the authority given to Belknap was constituting him such agent for that purpose; and the act of Belknap in this respect, was, in judgment of law, the act of George D'Wolf; and it is in proof, that the vessel designated was in every respect fitted for the purpose. Nor was any objection made by the defendant at the time on this ground; but he declined making the shipment, because George D'Wolf had not furnished him with funds to purchase the sugars; and the objection that the vessel was not designated by George D'Wolf cannot now be set up. The act of his agent was his act, and the evidence, therefore, fully supports the contract as laid in the declaration.
5. The only remaining question is as to the rule by which the damages are to be ascertained. Upon this subject much of the evidence which has been introduced on the part of the plaintiffs, and the various estimates and calculations which have been submitted to the jury, may be entirely laid aside, according to the view which I have taken of the question. I concur with the defendant's counsel on this point, that the measure of damages must be the value of the sugars in New-York, at the time of the breach of the contract by the defendant, in refusing to make the shipment according to his contract. If this was a question between George D'Wolf and the plaintiffs, for settling the account of the proceeds of the sugars, had they been shipped, it might have required the application of different principles. But the breach of the contract on the part of the defendant, consists in not making the shipment and consignment according to his undertaking. He did not undertake to deliver the sugars to the plaintiffs at Marseilles. He had no concern with the transportation or the expenses incident thereto. If he had shipped the sugars on board the vessel designated, consigned to the plaintiffs, his contract would have been complied with. The plaintiffs are accordingly entitled to recover the value of the sugars in New-York, at the time when the defendant was bound by his contract to make the shipment. This amount the jury will ascertain from the evidence that has been offered them on that subject.
