D'Wolf v. Rabaud

A iiorisuit may not be. Ordered' by the Court, in any case, without the consent and-acquiescence of the plaintiff.' {49£} ‘ A question of the citizenship Of a party to a cause, cannot constitute a part of the issue on the.merits.; and must be hrought forward by a ptopei plea in abatement, in ah earlier stagé'of the'oaus.e, -than the-trial On the • merits-. {498} The statute of Frauds of.New-York,.is-a transcript on this subject, of the statute 29.Charles, 2d ch. 3. ■ It declares, that no action.shall'be brought to charge a defendanfc'ón a special promise, for the debt, default or mis- -, carriage of another; Unless, the agreement, or some' memorandum, or note .thereof, be in the writing and Signed' by the party, or by soirié one by him authorized. The words,'"collateral” or ‘/.original” promise, do not occur in-the statute ;.arid have been introduced by Courts to' explain its objects, and expound its true interpretation.' {499} ■ Whether, by the' true intent- óf the statute of Frauds; it was to.hxtend.to cases wliere 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 or demand, and the promisewas merely founded upon a subsequent and- .distinct Understanding; 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 recognised and adopted ip practice. {499} If A agree to advance B a sum of money for whieh B is to be answerable, but at the same time if is . expressly upon the understanding 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 mere collateral undertaking, but rather a trilateral contract. The contract of B to' repay the money, isjiot coincident with, nor the samé contract with C to do the act. Each is an original promise; though the one may be deemed subsidiary or sécondary to the .other. The original consideration flows from -A, - not solely upon the promise of either B or C, but upon the promise of both diverso'inluiia, and each becomes liable to A, not upon a joint, buta several original undertaking. Each is a direct original promisé, founded upon the same consideration. {500} The .case of Wain vs. Warlters, (5 East 10,)'.wasthe first case.which settled-the point, that it was necessary in order, 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 contain it, it has since been determined that it is wholly immaterial whether the consideration be stated in express terms, or by. necessary implication. That c^ase has been adopted; to a limited extent, by the Courts of New-York into its jurisprudence, as a sound construction of the statute. {501} The decisions in the Courts of New-York on the construction .of its own sta- • tute, and the extent of the.rules deduced from it, present to .this Court a-guide in its decisions upon the'(construction of their statute. J501}

ERROR to the Circuit Court of Npw-York, for the Southern District. . The defendants in error, brought an action of assumpsit./ in the Circuit Court of the United. States, for the’ Southern District of New-Yort, against the plaintiff in error,-to recover damages, for .the breach .of .his contract, to ship to them, at Marseilles, five hundred boxes of-white Havana sugar. The declaration contains several special counts;.of which the first and second, on.ly. were relied upon at the .trial. The first count stated,,that atthé time of making the respective'promises and undertakings of-the defendants the plaintiffs, were co-partners in trades carrying on'-business at Marseilles in France^ under the firm of Rabaud, brothers and company. That-óñe George D’Wolf;. of Bristol, Rhode Island, being- desirous of drawing'upon the plaintiffs at Marseilles,, for 100,000 francs ;■ oh th¿T5th March 1825, át New-York, in-.considerar don that the plaintiffs,-' at the special -instance-and request-of the defendant, would authorize .the said George D’Wolf to dratv bills of exchange- upon the-plaintiffs for the-said sum. of 100,000 francs,- th.e- defendáht undertook, and-promised, .that he would ship for it he aqcoqnt of-George" D’Wolf, on- board of such vessel as - George D’Wolf -should direct,, five" hundred boxes of white Havana sugars’, consigned to the plaintiffs'.at Marseilles, (and the -plaintiffs afterwards, did duly, authorize. George D’Wolf to draw bills of exchange upon them at Marseilles, for the said sum. of .100,000 francs, which'bills .were drawn by him on theYOth of November 1825, and paid by the plaintiffs on the 3d day-of March 1826:' That op- the'4th day-of January 1825, at the. city óf New-York, Gebrge-D’Wolf did direct and name a vessel; '.the. brig Quito, then laying in the port of New-.York, and ready to receive the said.-sugars, onboard of which .vessel, the sugar should and.ought to have been'shipped, by the defendant, on account of George D’Wolf,, and consigned to the plaintiffs at Marseilles,- according to his said praniise/and undertaking; of all which promises the defendant had notice; and although -he-wus then and there requested to ship the sugar on board the said vessel, yet he did wholly refuse; the same. The second, count differs from the first -only in stating the contract to have been, that, “in consideration that the plain-tiffs, át the request of the defendant, would authorize George D’Wolf to draw bills of exchange upon them at Marseilles, for another sübx of .100,000 francs, on.account of oth.ey.five hundred boxes of white Havana sugar, to be shipped by the defendant for account of George D’Wolf, on board of such vessel as George D’Wolf should direct, and consigned to them the ■plaintiffs at Marseilles, the defendant undertook, &c.” and averring, that relying on the promise and undertaking of the defendant so made, they, the plaintiffs, after the malcing thereof, did duly authorize George D’Wolf to draw bills of exchange' upon them for another sum of 100,000 francs, on account of the last 'mentioned five hundred boxes of white Havana sugars, tobe shipped by the defendant on account of George D’Wolf, and consigned to the plaintiffs a.t Marseilles. . The cause was tried at the October term of the Circuit Court. of the United States, for the Southern District of New-York, in .1826, when the jury, under the charge of the Court found a verdict for. the plaintiffs below for $19,950 85. The, opinion of the Court, in the charge to the jury, was excepted to by the counsel for the defendant, and a bill of exceptions sealed by Mr. Justice Thomson, sitting as Judge of the Circuit Court; and the'opinion delivered by him, states the evidence adduced in the- cause. On the trial of the cause in the Circuit Court, the plaintiffs below, gave evidei.ee, by the testimony of George D’Wolf, who was examined under,a commission at Havana, that he George D’Wolf, had seyeral transactions with the plaintiffs previous to that which gave rise to this suit, and had at various times drawn bills on them. That he had three interviews with Mr. Belknap, on the subject of the shipment, of the sugars; which interviews were, had, first in Wall street in the city of New York; secondly, at the counting house of James D’Wolf, Jun., the plaintiff in error; and thirdly at the boarding house of Mr. Belknap. James D’Wolf, Jun..was present at the first interview, aud he with a certain Frederick G.- Bull was present at'the second, at his counting house. Mr. George D.’Wolf stated, that the transactions relative to the shipment of the sugars were; that, in Wall.street, he proposed tó' Mr. Belknap to address him five hundred boxes of sugars to the house at' Marseilles, on receiving authority to draw on account of the same, to the extent of 100,000 francs. Mr, Belknap, being engaged, an interview was proposed at the-counting house of Mr. James D’Wolf Jun., which took place, and at which Mr. Belknap observed, that the advance was heavy; and a' calculation was made by F. G. Bull, the confidential clerk of Mr. James Q’Wolf Jun., and by Mr. James D’Wolf himself, of the value of the sugar, compared with the proposed advance; the conclusion of which was, an agreement that the sugars should be shipped, and the authority to draw' granted to George'D’-Wolf; Mr. James D’Wolf engaging, by letter, to ship the sugars in behalf of George D’Wolf; which form of letter was afterwards .carried by George D’Wolf to Mr. Belknap, was assented to by him'; was signed by Mr. James D’Wolf.'Jun.;' and the authority to draw granted-and used accordingly. c This letter, and the authority to' draw, are.in the following' terms:— • New-York, 15th November 1825. . Mr. James D’WoliJun. Dear Sir -: — You will please ship for my account, on board o,f such-a vessel as I áhall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brother & Co. Marseilles, and oblige yo.uf friend and obedient servant. George D’Woli. Agreed to, James D’Wolf, Jun. ' New'-Fork, 15th November 1825.' Messrs. Rabaud, Brothers & Co., Man-.'lies.. I have this day authorized George D’Wolf Esq. to draw on' you for thousand francs, and I request you to honour' his bills to that amount. ; Your obedient servant, A. E. Belknap. Mr. George D’Wolf also stated,' that his object was to ship the sugars in one of his'own vessels; that he was then indebted to the house in Marseilles, aboiut thirty thousand francs, but could not say that Mr. James D’Wolf knew of the debt. The sugars were shipped to obtain the usual advance, and the consignees were, to have the . usual commissions in the transaction. Bills, to the amount of. the advance were afterwards drawn and negotiated in Boston, and the proceeds of .the same applied as follows: — 18,000 dollars remitted to Mr. James D’Wolf, in checks on the bank, and in an acceptance of Isaac Clapp, a bro*.ker in Boston; and .the residue of the proceeds of the transaction passed- to the account of George D’Wolf by Mr. Clapp.-It was admitted, that the bills. were regularly paid at Marseilles, by the defendants in error.' It was also in evidence, by the testimony of Mr. George D’Wolf, that at the time of the negótiátion for the bills, Mr. George-D’Wolf had in the hands of the'plaintiff in error, from three to four hundred boxes of sugar; of which sixty had been remitted from Rhode Island, on account of which he drew the sum of four thousand dollars, and the remainder were purchased for •his account by Mr. James D’Wolf Jim.; and at the same time he was indebted to Mr. James D’Wolf Jun. a considerable amount. • Mr. George D’Wolf, also testified* that the sugars to be shipped were to be on his account,, and uot .on that of the plaintiff in error — that the agreement with Mr. James D’Wolf was-.that the proceeds of . the negotiation of the advance should be remitted to him, and upon this verbal agreement, Mr. James D’Wolf granted his signature tocthe letter of the 15th of November 1825. Mr. James DJWolf afterwards wrote to the witness,-that he should decline to máke the shipment' inquestión, until he should receive the remittances' agreed upon. When the-letter was .first presented, Mr. James D’Wolf declined signing it, defei’ring it to the next morning, when he should see,’Mr. Bull; and it was signed the next morning. That the letter or memorandum of agreement, had for its solé object the .shipment of the sugars to Marseilles, that market being preferred to Ñéw-Yórk; and to place in the hands of Mr. James D’Wolf Jun. the proceeds of the bills, in order to further the shipment; and not with reference to accounts existing betweefi him. and the plaintiff in error; and that the plaintiff in error, knew the defendants, and particularly Mr. Belknap, in the transaction as stated. ’ Mr. George D’Wolf also stated in his evidence, that toe did not know that Mr.. Belknap Was acquainted with the circumstance that the proceeds of the bills were to go to the plain-, tiff in error'; or with the state of accounts between'him add ' Mr. James D’Wolf junior. . Evidence wás also given to show, that the plaintiffs below carried on business in Marseilles, in France, and that all of the said parties, with' -the exception of Mr: Belknap, Were native subjects of France;- and that Mr, Belknap was a- nativecitizen of the United States, had resided some years in France,-' and now,.; always considering Boston as his-home, resided fti Boston,; where, he lodged in á boarding-house, in which her hired róóms by the year; and was understood'to pay taxes in-Boston; his letters of business were addressed' to Boston';.-;and. hé wás absent from there in' the United States; occasionally, for the purposes of transacting business for the firm in Mar-' seilles. ! Boon after the negotiation of the 15th November, Mr: George D’Wolf became insolvent, and at the time of his failure, he was' largely .indebted to the plaintiff in error. Being thus embarrassed he addressed to Mr. Belknap the folio wing, letter:— Bristol, JR. 1. 2,7th December, 1825. . M.' 'A. E; Belknap. . Dear Sir, I am-in. receipt of yours of the 23d instant, and note-it is ' contents. Owing to my embarrassments, the Magnet which I had wrote youwould proceed to New-York to take the sugars, which Mr. James D’Wolf junior was to ship to your house in Marseilles, will not’ go on. You are therefore at liberty to make any arrangements with him you may think proper, fo.r the iu-tereát of-all concerned. I am extremely sorry that you met with an accident to prevent your visiting me,- as it would have afforded me much pleasure in seeing you. Believe rne very truly your friend, ■ George D’Woi.f. Which letter was upon the 27th day of December 1825 shown to the pláintiff in error, by Mr. Belknap; and a copy of the same was, upon the 3d of January 1826, delivered to him. enclosed in the following letter: — ; New-York, January 3d 182C. Mr. James D’Wqlf Junior, New-York. Sir — I enclose you a copy o'f a letter which I yesterday received from- Mr. George D’Wolf, of Bristol Rhode Island. In pursuance of the authority given me by him, I shall, without delay, engage and provide a vessel, on board of which 1 shall require you (according, to your contract of the 15th November last,) to ship for account of Mr. George D’Wolf five hundred boxes white Havana-sugar, consigned to Messrs. Ra-baud, Brothers & Co., Marseilles. Your obedient servant, A. E. Belknap. On the 4th'January 1826, Mr. Belknap addressed the plaintiff in error, in the following terms:— New-Fork, January 4th 1826. Mr.-James D’Wolf Junior, New-York. '• Sir — In. pursuance of the notice J gave you in my' letter of yesterday, I have engaged the American brig Quito, Captain Wing, now lying, at Fly Market wharf, in this city-, for the purpose of receiving, on freight, for Marseilles, five hundred boxes of white Havana sugar. The Quito is a good staunch vessel, and is now ready to receive the sugár. I therefore require you to ship on board of-her for account of Mr. George D’Wolf, of Bristol R. I. five' hundred boxes of white Havana sugar, consigned to Messrs. Rabaud, Brothers &' Co. of Marseilles, according to your contract of 15th November last: Herewith, is a copy of a letter I addressed to Mr. George D’ Wolf, on the 23d of December last, his answer to which I showed you yesterday; at the same time I gave you a copy.of it. If you prefer to ship the sugar in any vessel other than the Quito, I have no objcction, provided yjju will' designate the vessel, and give notice to me immediately'; and make the shipment without delay. Your, obedient servant, A. E. Belknap. To this letter the plaintiff replied as follows.:— New-York, January 5th 1826, Mr. A. E.'Belknap. Sir — In answer to yoiir, letter of the 4th instant, I have mere • ly.to say, that whenever Mr. George D’Wolf, or any person authorized by him, will pay me for five hundred boxes of Havana sugar, I will ship the same, consigned to Messrs, Ra-baud, .brothers & Co., at Marseilles. Your obedient servant, James D’Wolf Jun. •Evidence was also given, that the brig Quito was engaged early in January 1826 by Mr. Belknap to . carry the sugar to Marseilles, that'she was a'competent vessel for the purpose, and'that the . freight'to be .paid for the transportation of the sugar was the usual and tustomary charge for the saipe. ■ The plaintiffs in error objected- at the trial to the reading of tjie letter of 27'ih December 1825, from George D’Wolf to Mr. Belknap, ■vyhich objection was overruled by the Court. On the part of the plaintiffs in. error, at the trial of the cause before tthe'Circuit Court, Frederick G. Bull was introduced as a witness, whose testimony is stated in the bill of exceptions •t'o have been given as follows • That be is, and for nine years past- has been, a confidential clerk in the. employment of the said James D’Wolf, junior; that he was present at the coiinting-room of the said defendant on the 15th day of November 1825, when the interview mentioned and- described in the said deposition of the said George.D’Wolf took place,-between the said George D’Wolf,' the said Andrew E. Belknap, and the said James -D’Wolf, junior; that the said George D’Wolf and Andrew E. Belknap came into the counting-room on "said ÍSth.day of November in company, and were.conversing together; that they there found the said James D’Wolf, junior, and the witness; that after some, little time had-elapsed, the said James D’Wplf, junior, and the witness, withdrew into an inner apartment or ...adjoining, room,-and were in. a few minutes, followed by the said George D’Wolf, and the said Andrew E. Belknap; that while the said. Andrew.. E. Belknap and the said George D’Wolf were in conversation, the latter addressed a question to the said James D’Wolf,. junior, and asked him how much five hundred boxes.of sugar would bring, or amount to, at some specified price; that the said James D’Wolf, junior turned to the witness, and asked him to make the calculation; that the witness did make a hast-y calculation, and gave for answer,' “ about seventeen thousand dollars;”-'that he heard no proposition made by the said James D’Wolf, junior, to the said Andrew'E. Bel-knap, nor by the said Andrew E. Belknap to the said James D’Wolf, junior,.nor any conversation between the said Belknap and the said defendant of any importance, although he thinks that the said defendant did speak to the said Belknap once or twice during the said interview; that the said James D’Wolf, junior, appeared, .'so far' as the witness observed, to take. little or no interest in the conversation or business which was going-forward and taking place between the said George D’Wolf and the said Andrew E. Belknap; that during the time of said' conversation and interview, (.which occupied not more than ten or fifteen minutes,) the-said James D’W.olf,- junior,- left the counting-room for- a short time and .returned; that the said James D’WoJf, junior, is in the habit of communicating all matters of business to the witness, and consulting him concerning the same., and the witness does not-think it at all probable, that the said James D’Wolf, junior, would-have made any contract or agreement with the said Andrew E. Belknap,' either at that time or any other, without the knowledge of the witness; that the said James-D’Wolf,,junior, during part of the time of the said interview, was walking about his countingrfoom, while the said George D’Wolf and the said Andrew E. Belknap were conversing together, and at one time came up to the witness and addressed some remarks to, him; that the witness was writing at the desk, and occupied in his own affairs of business, and did not pay very particular attention to the conversation of the said parties; that the defendant and Belknap "might have conversed on the subject of the sugar without the .witness knowing it; and the witness would not undertake to' say that an . agreement by the- said defendant with the said plaintiff might not have been made without the knowledge of the witness; that the witness does not know, that the said Andrew E. Belknap knew'-that the proceeds of said' bills were to have been remitted to the said defendant, by the said, George D’Wolf, before.the said defendant was bound to ship th'e said sugar; that the said George D’Wplf was, on the 15th day of November 1825, and for a long period anterior thereto, and e.yer since has been, largely indebted to the said James D’Wolf, ■ junior; that the sum.of thirteen thousand- dollars^ for and on. account of the five hundred boxes of sugar -mentioned in the said deposition of George D’Wolf, was never paid by the said.' George to the said defendant, and never came into his hands: that George D’Wolf did, on or cd.iavf. the 23d day of November 1825, remit to the d'efendam, his, George D’Wolf’s, draft for six-thousand dollars, on Isaac Clapp, of Boston, at three days’ sight, and a check upon the United States’ Branch Bank at. New-York, for one tlwicsand dollars; which said -draft and check were both paid, and the amount thereof received by the said James D’Wolf, junior: that the said George D’Wolf did also, shortly after, transmit to the defendant, his, the said George, D’Wolf’s draft upon the said Isaac .Clapp, at thirty days’ sight, for seven thousand dollars, which was received by the defendant, but was never paid, either by the acceptor, the said.Isaac Clapp, or the drawer, the said George D’Wolf; but the same was protested for non-payment, and still remains due and unpaid. The counsel for the defendant below, then offered to prove by Mi'- Bull, that there was an express understanding and agreement between the defendant and George D’Wolf,■ at the time the said letter of the 15th of November was signed by the defendant, that the latter should furnis i the defendant with the funds necessary for the purchase of said sugar, before the said defendant, would be under any obligation to ship the same. This.testimony was not permitted to-go to the jury; the Court stating that “ the defendant below could offer no testimony to the jury, of any arrangement between him and George D’Wolf relating to the funds for the payment for the sugar, unless it should also appear that Mr. Belknap was party thereto, or that the same was brought to his knowledge.” The counsel for the defendant below excepted to this opinion. The defendant below also gave in evidence on the trial, the following letter, containing matter contradictory to the testimony of George D’Wolf. Boston, November 9.8th, 1825. Mr. James D’Wolf, Junior. Dear Sir, I send you my draft on Mr. Clapp for 86000, at three days’ sight, as; he cannot get any drafts or checks on New-York, having tried all-the banks and brokers;.he has not sold the exchange, or any part of it as yet, but thinks he can in three hr four days. Last sales' 19£- cents; money very scarce; the New-Yorkers have sent on a great deal of paper; banks stopt dis-' counting. He will remit you the balance as soon as he sells,’ then, if a draft can be procured; or otherwise will authorize you to' draw on him for the balance: I enclose a check on the Branch for 81000, making 87000 which credit this account: T am ypiir friend and obedient- servant, George.D’Wolf, The case was argued bv Mr. Ogden and Mr. Jonathan Prescott Hall for the .plaintiff in error, and by Mr. Webster; and Mr. Charles C. King for the defendants * ■ The defendants in error brought an action of assumpsit in the Court below, against the plaintiff in error, founded upon a special agreement; they are therefore bound to prove the contract stated in the declaration, expressly, as laid. This is a cardinal rule in pleading-. Brum. L. Bay. 755. Hockin vs. Cooke, 4'T. jR., 314. ..The plaintiffs mu-st, in the'first.place, prove a promise from the.'defendant to the plaintiffs, and then, any consideration of benefit to the defendant, or-of injury to the pfain-tiffs; moving between the parties, will sustain the promise. (1 . Moll, Mr. 6.) ’ . . It is admitted by the learned Judge, in his. charge to the jury, that 4£ the letter” from; Geo. D’Wolf to the defendant,. dated November 15th, 1825, and upon which the latter subscribed the words “ agreed to,” is the principal evidence in the cause.' This letter, we say, neither proves, nor conduces to prove the promise laid in the declaration. In the first place, the plaintiffs are not parties to the contract contained in the .writing'; and it is a general rule, that no person can maintain an action of assumpsit, upon an agreement to which he is not a party ; for in such case there can be no contract express or implied. Jordan vs. Jordan, Cro. Eliz. 369. Crow vs. Rogers, 1 Strange, 592. Bourne vs. Mason, 1 Vent. 6. The construction to be put upon this letter is matter of law,-¿nd it ought not to pass to the jury without explanation from' the Court. (1 T. R. 172.) This agreement, upon its face, clearly purports to be a contract between George D’Wolf upon the oné part, and James D’Wolf 'jun. upon the other. The words of ' the letter are to be'explained according to their natural import; and'we are not to go in search of conjectures, in order to extend them, when the meaning conveyed by-the terms of the agreement is evident, and leads tb.no absurd conclusion. Chitty'on Com. 4* 'Mar. vol. 3, 107¿ Rowel on Con. title “ Interpretation.” Vattel’s L. of N.. 224. An express contract is; gathered merely from the words of the parties themselves, who are bound to know the meaning which the law will attach to express words. It rests on no uncertain inferences of the.probable meaning- of the parties; but on the actual declaration of intention, made in direct terms. Chitty on Com. fy Mar. vol. 3, pages- 3 and .4. “The letter” judged by these rules, is plainly a contract’ between the defendant-and Geo. D’Wolf, resting upon a consideration passing between them, and the insertion of the names of thé plaintiffs w.as a mere direction, as to whose care the sugar when shipped- should be committed. • The plaintiffs are the mere agents or intended.bailees of Geo. D’Wolf, and have no apparent interest in the subject-matter'of the contract. The-agreement is placed? by the terms made use of, entirely under the- control,of- Geo. D.’Wolf, who has the power of designating a vessel to receive'the sugar. JHe is a party in fact, and a party in interest, and-by- complying with the terms of the agreement-imposed upon him,■ he would have the right,- and-the sole right’ to seek an - enforcement of.the contract. The words *.( for my account,’.’ contained in the letter prove that the agreement was not made with nor for the plaintiffs,'and they, have no author rity for hringing an nation in their-own'names,-for a violation of the contract, - This position may'be supported by dh analogy dra#n- from bills of lading. ' A .bill off lading, expressed in the ordinary form, transfer's • the property absolutely ■ to the consignee, and he becomes, in legal contemplation, the owner of the' goods. But if words areiriade usé .of in the bill of lading, which show that the property of the shipment remains in the consignor, and that the consignee is the .mere;agentor factffr of the consignor ,; then no action for a' violation of the contract contained in the bill of lading, will' lie in the name of the consignee. If 'must be brought in the name of the Consignor. • If .the rights of the consignee, arising from advances, made in expectation of the consignment are violated, he has no remedy upon the contract, but must bring trover, or go; into a Court of Equity. Ev'-' ans vs. Martlett, 12 Mod. 156, Chitty on. Com. %■ Mar. vol. 3. 401, n. 2;-n. 5. Potter vs'. Lansing; 1 John.' 215. Davis vs. Jordan^ S'Burrows, 2680. ■ Sargeaut vs. Morris, 3 B. %■ A, 277. The action mustbe brought in the- narde of the party who has the legal interest in the subject matter of the contract; and a mere equitable right, if any exist, will not support an action1' upon an express agreement to which the plaintiffs are not par-' ties.- If this sugar-had been shipped, it would have been-shipped as’the property of Geo. D’Wolf; who would have, been liable for freight, insuranee,■ and commissions. The property .would have been, at his risk; and in case of the-bankruptcy of the-plaintiffs, Geo. D’Wolf would have had "the right to repay to them the advance received, and' to stop the goods in transitu. “ This not being an action for deceit and imposition, but.on a written contract, the right of the, plaintiffs to-'recover is-measured', precisely by that contract.” Taylóe vs. Riggs, 1 Peters’s Reports of the Decisions of the S. C. 1828, post. 2.. The letter upon, its face, is plainly.a contract between the defendant -and Geo. D’Wolf .. It is not negotiable, and the' delivery of it, therefore, to thfe plaintiffs by Geo.,D’Wóíf, gives them no authority to maintain an action upon the agreement in their own names. 1 This instrument'bears no analogy to a bill of exchange: not being made-payable in money and containing no operative words -of transfer. It is a mere executory agreement to slnp merchandise, and if .valid would only subject the. defendant' to damages for'its violation, aá between the original parties'. (Smith vS. Smith, 2 John, 240. Jerome 'vs. Whitney, 7 John, 321. Cooledge vs. Ruggles, 15 -Mass.) If this letter or order had been for the payment of money, but drawn-in its preseiit restricted form, it would not have'-entitled the plaintiffs to. maintain an action in their own names upon, the acceptance or special contract. No instrument in the form of a-bill of exchange, was ever held to be negotiable, unless in some substantial form made payable to'order on the face of it. The law, as laid down in the case of Hill us.-Lewis, (1 Salk: 133,) has always been ad-hered to. (See Girard, us. Da.Costaet al. l Dallas, 144. Down-; ing vs, Backentoes, 3 Carnes, 137. Stephens vs. Hill, 5 Esp. N. ■ P. Cases, 247.) 3. This letter being a contract between Geo. D’Wolf and the defendant, is, as between the original parties, nuduni pactum, for the want of mutuality and void. George D’Wolf was not bound to designate a vessel nor to receive the sugar; and it.is a universal rule that a contract cannot bind one party and not the other. tiApromise'ma.y be voluntary, but an agreement to be binding, must contain a mutual engagement. ” Lyon vs. Lamb, Fell, on Met. Guar. 336. 1 Roll. Jib. 23. Coke Lift. 55, a. Doe vs. Smith,.2 T.R. 438. Clayton us. Jennings, 2 -W. B. R. 706. Payne vs. Cane, 3 T. R. 148. Cooke vs-. Oxley, 3 T. R. .148. _ Waine vs. Warlters, 5 East, 16. Kington-us.'Phelps, Peake’s N. P. Cas. 227.. Tucker us. Woods, l&John. 190.-Parkhurst us. Van Cortlandt, 1 John. C. R. 282. Jenkins us. Reynolds, 3 Brod.fyB. 13. Woods us. Edwards, 19 John. 211. McLemore us. Po.well, 12 Wheat. 557. 2 Black. Com. 447. . 1 Fonb. Eq. 383,' n. a. vol. 3, 129. 4 T. R. 764-5: 7 Ibid. 129-131.. 7 Bro. P. C. 184. 4. But if-the agreement be no.t void for .want of mutuality; still payment of the value of the sugar to the defendant, is a condition precedent to his undertaking to ship, clearly implied from the face of the instrument, and should have been averred in the declaration. Chit. Plea. 314-J.5. 1 Wm. Sound. 3'~) note4 at the end. Úpm.-Dig. title Pleader C. 51. í T. R./645. 7 Ibid. 121. 1 Sound. 319-320. 1 East, 203, 208, 619. Coivper .vs. Andrews, Hobart, 41. 1 h. Black. 363. 5.. The contract of the defendant relative to the shipment of the sugar was,entirely in writing,, and is contained in the letter of-November 15th-I825. If this agreement is free from ambiguity, So as to be capable of a sensible exposition from its own t.erms, without reference to. extrinsic, matters, dehors the instrument itself; then no parol evidence can be introduced to' vary the terms of the agreement, or to change the' parties thereto. Clarkeus, Russell, 3 Dali. 421. Qunni's us. Erhart, iH. Black. 289. Coker us. Guy; .2 Bos. fy Pull. 565. -Thompson us. Ketchum, 8rJohn. 146. Gilpins vs. Consequa, l.Pet.R. 87. Dean us.. Mason, 4 Qgn.R. The N. Y. Ins. Co.us..Thomas, 3 John.-Cas. 1. Jackson us. fcroy, 12 John. 427. ÍÍ Mass. 9,7. 2 Brow. Ch. 219. Peake’sEv, Í17. Vandevoort ús. .Col. Ins. ,Co. 2 Caines, 155. Mumford us. .McPherson, 1 John. Rep. 418. Brigham us, Rogers, 17 Mass. Po.well us. Edmunds, 12 East,. 10. Jackson us. Sill, 11 John. 216, Parkhurst us, Ván Cortlandt,- l.J. C. II. 283. Hampshire us. Pierce, 2 Vez., 2161 Jackson us. Hart, 12 John. 17. Grant; us. Naylor,.4. Cranch, 224. 6.-' But if there is any doubt upon, this subject, and the parol evidence be admitted to explain the agreement, then we say, that neither the parol proof, nor ‘Uhe letter” taken in connexion with the parol proof, can sustain the plaintiffs’ declaration. — Í» Because there is no proof upon the_record, that the defendant-ever made the' promise set.forth in the declaratioiv either to Or for the plaintiffs: but on the contrary, the evidence is conclu- . sive that the very promise, claimed by the plaintiffs to have been made to them and for their benefit, was made by the defendant to George D’Wolf,- and for his benefit. The defendant having moved for a nonsuit at the trial, has aright to examine the testimony- üpon this point at this time, in the same manner as upon. the original motion. If .the testimony offered in evidence by the . plaintiff, be insufficient, in-point of law, to sustain his declaration, the defendant has a., right to call upon the Court to non-suit the plaintiff. Swift ns. Livingston,'2./0A». Cases, 112. Clements vs. Benjamin, 12 John. 298: Prátt vs. Hull, 13 John. 298. . Crook shank-us. Gray,.20 John. 350. ' 2. The consideration upon which the defendant’s promise was .made, is entirely different from that set forth in the declaration,”' and this-is,a fatal variance. "(King vs. Robinson, Cro. Eliz. 79. Com. Big.vol. 1, 334, title,, action upon the case upon'assumpsit.) 3.-, Were there any -doubt-upon these .points, the defendant • ought to have been permitted to remove- them by the testimony óf Mr. Bull: If it be contended that this promise, although not made directly■■ to the'plaintiffs, was -nevertheless-made to Geo. D’Wolf for .their benefit; then the testimony offered by the’defendant at the trial, ought to. have been received to contradict •this assertion. 4. vBut the- promise-contained in the letter,, if made to Geo. D’Wdlf for the benefit of the plaintiffs, will not sustain the declaration,.unless he-cah-be,considered as' theunere agent of the plaintiffs; and this supposition is contradicted, not only by the words.of the instruméht' itselfj but by the plaintiffs’ own witness. [The counsel here referred- to and commented on the following cases: Dutton vs. Pool,.2 Lev. 210. Schermerhorn vs. Vandérheyden, 1 John. Rep. p. 9. Felton ns. Dickenson,-10 Mass. 287. Piggott vs. Thompson, 3 Bos. fy Pull.;149, and thé note.. Martyn vs. Hynde, Cowp.AM. Com,Of-Feltmakers'us. Davis, (1 Bos. Pull. 102.) 3 Salk. 234. Comí. 450. 3 T. R. 757. Chitt. on Plea, vol. 1, p: 4. Com. Diges. vol. 1, p. S09 and the note pi, title action . upon the case upon assumpsit."].' Indeed in the case of a written contract u inter partes,” no other than an immediate party to the. instrument itself, can maintain an. action upon -it. (Offley vs. Warde, 1 Lev. 235. Gilbey vs. Copley, 3 Lev. 139. Salter us. Kingsley, Carth. 77.) . If Geo. D’Wolf was tne agent, of the .plaintiffs, then they are bound by his acts, and' must place the proceeds of the bills of exchange in the hands Of the defendant, according to George D’Wolf s express promise,, before he will be under any obligation to ship the sugar. 7.- No vessél .has.ever been designated by George D’Wolf, on board of which, the defendant has been required, by. George D’. Wolf, to ship the- sugar; and until such designation, no right,of action will accrue in favour of any pérson against the defendant. The letter of George D’Wolf dated December 27th, 1825, and. addressed to Á. E.. Belknap, (relied upon by the counsel, for the plaintiffs to prove an áuthority in Belknap .to designate a vessel as the agfent of.George D’Wolf,) is insufficient for that purpose! It gives Belknap no such authority.; and besides, George D’Wolf had no right, legal or moral, after , his bankruptcy, and-after failing to. place funds in the. hands of the defendants, either for the purchase or payment .of the sugar, — to call upon tíim to ship the . same, consigned to the plaintiffs at Marseilles. 8. The'agreement of the .defendant relative to the shipment of the sugar, [f made with the plaintiffs at- all, was., collateral to an undertaking oh the part of George D’Wblf that he would, cause the sugar to be shipped by the defendant, in considerationbf an authority to! be given to" him to draw hills .of , exchange upon the plaintiffs, for hiá .own .benefit;- For thé.nóhfulfilment of this promise, George D’Wolf was and is liable, and the defendant’s undertaking is essentially a guarantee, given in aid of George D’Wolf’s credit, or for. the performance of' an act which' he was bound by a promise, confessedly original,', ■to perform.-, .Frcim. the.performance of this 'promise George D’Wolf has .never been- exonerated,. and the defendant’s Under-. taking, is collateral to-that of ..George D’Wolf.* The testimony of the plaintiffs- is''.therefore inadmissible hnder . the statute of . frauds, to’ prove their declaration for the want of a sufficient memorandum ofthe agfeement, in writing. Whatever doubts?may have existed; upon .this subject, it is now well settled, .that in / cases under the afatute.of. 29 Char.- 2, Chap.- 3,' sec. 4 (i-iV* K ' Beviied Laws page.78,. chap¿ 44, sec.: XI) the cónsideration upon; which the agreement rests as well as the promise itself, mustap- • •pear upon the writing: Wain us. Warlters, 5 Bast,-16.' Lynn vs..Lamb, Fell, on Guar,.- Saunde’rs.us. Wakefield, 8 5.’ 7% 1. As this cause is brought here by a writ of error, we'apprehend that the Court will -not go into an examination of the weight of the testimony.' The verdict of the jury is conclusive, that the defendant made the agreement stated in the plaintiffs’ declaration. ,Tt is unnecessary now to in quire,, what wasthe agreement between the defendant and George'D’WpIf,'.or whether that agreement cbuld.be enforced — and it was equally so at the trial, unless that agreement was- brought home to the knowledge of Belknap, so as- to.become a part of the defendant’s contract with the'plaintiffs. 2. But aside from the verdict — The testimony proved the contract as laid in the declaration. Tf we putthé case upon the verbal agreement between the parties, as we contend that we may, (3 Dali. 300) then the testimony of -George D’Wolf clearly made out our case.! The letter is only corroborative of the verbal agreement If-we go upon the written contract as contained in the letter of the 15th November 1825; then we contend, that the written agreement is in its terms as much an agreement with, the plaintiffs as with George D’Wolf, and may entire to their benefit.. If the letter Bad not expressed that the s'u-gars were to -be shipped for the account of George D’Wolf, the agreement of the defendant would have been a mere undertaking with the plaintiffs. .Rut, for the purpose' of this action, it is sufficient, that the agreement contained in the letter of the 15th November, was in fact made and entered into by the defendant for the use and benefit of the plaintiffs. That it was so., was fully proved. They advanced the consideration • of the undertaking in the faith of its being performed; and the defendant, at- the time when he signed the letter, knew, "that it was to be delivered to Mr. Bel-' knap, who on its credit would authorize George D’Wolf to draw the-bills. It was not necessary, in order to entitle, the plaintiffs to maintain their action,-that George D’Wolf should have been a mere agent without interest. ' The cases cited' do not support. the position of the counsel. The rüle is, that if the promise is made to A for the benefit'of B, from whom that' consideration moves, the law will intend 'hat A is the iriere agent of B. (1 Com. Dig. action on, the case assumpsit. E 8/- note, Weston vs. Barker, 12 John. :Rep. 276. Lawson m.,Mason,.3- Cranch^ 492.) 3. The main question, and that which involves the merits of this causé, arises upon that part of the. charge of the-learned Judge, in which he instructed the jury “ that 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, then the consideration of the defendant’s undertaking might be proved by parol.” It is condeded that if the undertaking of the defendant was original, and. not within the statute-of Frauds, parol evidence of the consideration was admissible. If the consideration be ' stated in connexion with the-written agreement,' the undertaking is in. its terms direct to the plaintiffs; and. nbthing more remains to be supplied by parol evidence. But, if it were necessary, párol evidence was. admissible.to prove the res gesta, arid purpose of that letter arid agreement. ' Bateman vs. Phillips. 15 East, 272; 7 Taunt. 295. -5 Wheat'. 326. But it is- contended, that the undertaking of the defendant, (if an undertaking to the plaintiffs,) was a collateral agreement within the statute of Frauds.; arid that the consideration as well as‘th:e promise, must be in writing, in order to be binding upon the defendant. ■ Admitting the law to' be now settled by the English-cases, as we say it ought not. to. be, we contend, that if the general proposition which Was first laid down by Lord Ellenboroúgh in the case of Wain vs. Warlters, can be maintained, still.our case cannot in any víéw of it be brought' within the principle of. that case. In Wain u's. Warlters, the defendant undertook to pay the. previously subsisting debt of another person, upon a netfi consideration ; that the' plaintiff would forbear to sue. .In the present case, the jury, have expressly, found that the arrangement between Mj. Belknap, and George D’Wolf, as to the authority to draw on'the house in Marseilles, on the shipment and consignment of the sugar, and the undertaking of the defendant to make that .shipment, were.-made and entered, into at one and the- same time, so as to form one 'entire transaction; and that the authority given-by Mr. Belknap-.to Ge.orge D’Wolf íq draw-on the plaintiffs' for. 100,000 frahcs,was the consideration of the entire agreement. If then the undertaking of the defendant was collateral and within the statute of Frauds, it was simultaneous with the original undertaking, and. supported by the same consideration — and upon the authority of Leonard vs. Vredenhurgh, (8 Johns. Rep. 29,) the parol evidence of the consideration was admissible. Leonard us, Vredenburgh was decided upon ' deliberate consideration, and has been followed and confirmed in- the subsequent cases, (Bailey vs. Freeman, 11 .Johns. Rep. 221. Nelson vs. Dubois, 13 Johns. Rep. 175, j. and it is regarded ás settled law in the state of New'-York. 4.’-The undertaking of the defendant was not, collateral in any sense'; but was an original undertaking, exclusively his. .and need pot have been in writing. By agreeing to- ship the sugars and to consign them to the' plaintiffs, .on the account of Gep, D’Wolf, the defendant did not undertake .to pay any debt of George D’Wcilf, then existing, or'about to• be created. ■ Th'e defendant was the only person who undertook or was bound to make the shipment. He did not engage, that Geo. D’Wolf should ship the sugars, or that he would' ship on the default of .George; but- he assumed ■the entire and exclusive responsibility of providing and ship-, ping.the five hundred boxes, according to the terms of the letter.. 5. The letter, from George D’Wolf’ tó Mr. Belknap, dated at Bristol on the 27th December, ,1828, constituted Mr. Belknap the agent-of George D’Wolf for the purpose of naming the vessel; on board of. which the defendant was to make the ■ shipment. It was intended as' an authorization for that purpose, and w-as. regarded as such both by Mr. Belknap and the defendant. But whatever objections might have been made by the defendant,4 cither to the sufficiency, of. that authority, or to the right of Georgé'.D’Wolf, after his bankruptcy, either to name^ the.;vesselj or -t-o authorise Mr..’Belknap, or . any "other person to do so,-they-were waived by .the "defendant in his letter to Mr. Belknap,. under the date of-the 6th of January; 1826, pvherejn he-puts his refusal to ship "the sugars on'the single grpunci, that they had not been paid for.