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

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. 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 ■ Mr. Half and Mr. Ogden for the plaintiff in error. 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.’ <§* Sid. 595. Jenkins vs. Reynold, B. Sr Bing.,p, 14..Jean vs. Prink,, 3 John. 211.. Leonard v.s. Vredenburg, 8 JcM. 27. Stewart, vs.. M’Givin, 1 Cow. ■ 99. Sioan vs .Wilson, 4 ffdn- Sr John. 322; Stephens, Ramsay & . Co. vs. Winn, 2 Nott fy AT Cord 5>7% • Mr. Webster and Mr. King for the defendants. 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. 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 otic or the other, by reason of .the failuVeof George D’Wolf. In such cases, it is reasonable to expect that each party will urge tvith 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 Í have already had occasion to say indisposing of'the motion for a nonsuit. The result in tlie 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 pro- , virice to decide; and for the purpose of enabling, the parties'to'avail themselves-,of.whatever exceptions they may have to take, many remarks maybe 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 JJnited States, to come,..into this Court to' prosecute their action. It has not been denied but :thafcall 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 defepdánt, that this averment has not been proved. -• from the evidence, jt appears, that Belknap was either bom in Boston,' or removed there \vith his father, at a very.early age, fromÑewiHampshire, arid.cdntinued to live'ín Bostón .until h'é went to France., where he remained ten or twelve years,.when he returned to Boston. . That he is- an unmarried ■ man, haying no family.; lives atdodgings; has rooms,' ás one.of.thé witnesses understood, hired , by the year, and' is there about two-thirds-of the time.'. The residue of the'time he'is absent Oh business .of the firm of which he-is fi partner, principally in N.ewrVoyk and'.Philadelphia, andothercities of 'the' United. S tates'. ■ One of the witnesses .testified, that on onp occasion he wept' with him.to town meeting to vote at'an election, lie" did not see him voté,' but'understood .lie 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.hi’s.place of residence ifthey did pot'knowofhi'sabsence. That letters from abroad are addressed, to him áf 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'Ignited.States cannót be.questioned; apd if a citizen of'any.particular ■'States within the.sense. arid meaning of the Constitution and Law,' it must b'e of Massachusetts. No evidence has bfeen offered to raise a doubt on this point' 'Whenever absent from Boston it-was temporarily, and on the . businesS of the plaintiff's; 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 npt appear to stand in this situation. His donucil, 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 acr tion ; and to deprive him of that privilege would be extending this disability beyoud the reason and policy of the law. The' facts in relation to Belknap do not appear to be in dispute so far as Í have understood them; and if, according ¿0 your understanding of the evidence, they .are as I have stated, the: averment that he is a citizen of the state of Masssachusetts 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 b 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 lnindred 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 tp ship (or 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 ori tile part of the defendant, and that the de-. fects cannot be supplied by. parol evidence. .This objection, I think, can-, not 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 assept 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, almost, 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 whenthey first met hi 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 5 and I think it may, if -the .undertaking of the defendant was entered into at the same timé 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 sliipment, was certainly the principal, if nót 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 ami 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 betweenthese 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’WoIf 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 beeh 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 ip the declaration and the proof in support of it, in relation to the-letter of advice from Belknap to his copartners, apprizingthem of his. having authorized the drafts, of George D’Wolf. The.declaration alleges, “that in consideration that tlie 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 writing1, 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 pne hundred thousand francs. That-in pursuance, of such authority he djd 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.veésel as George'D’Wolf should direct. He, having become insolvent, wrote á-letter, to Belknap, authorizing •him to make arrangement with tne 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 thmsUgars. 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 boundjievsonaHy to designate such vessel; he might do this by his agent, and-the authority given to Belknap was constituting him such agentfor that purpose-; and the act of Belknap in thisrespect, .was, in judg- ' ment 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 makingthé shipment, because George-D’Wolf had not'furnished him.with funds'to purchase the sugars; and the objection that the vessel-watf not designated by George D’Wolf cannot now be set up. The' act of: hi'S. agent was liis.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’ elucidations which have been submitted to the-jury, -may be^ entirely laid aside, according to the- view which I have taken.of the questiop. .1 concurwith the-defendant’s counsel -on this point, that the measure /of damages -.roust be'the value of the. sugars in New-York, at the tibie. of the breach of the . contract by the defendant, in-refusing to mike the, shipment according to his contract, - if this -was a question between George;. D’Wolf and .the plaintiffs,’ for settling the account of the proc'e'eds'of.fhe Sugars, had they been shipped, it- might have required the' application of different principles; But -the breach of the - contract ori the part Of the defendant,' consists in hot. -making, the shipment and consignment according to his .undertaking.;, Tie 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 fie "had shipped the sugars-On board the vessel designated, consigned to thd plaintiffs, his contract would have been complied with. The plaintiffs..ato accordingly entitled to recover, the' value .of the sugars iu New-York, at the -time when the defendant was boiind by his contract to mákte the shipment-This amount the jury will ascertain from the evidence that' has been offered them on that subject.' Buckcnyr vs.- Darnall, 2 L. May. 1Ü85. Anderson us. Dayman, 1 ‘ H. Í3. 120. Gordon us. Mai-tyñ, -Fits. 302. Matson us. Wharham, 2 T. B. 80. Jones ■is. Ballard,- Chase us. Day, 17. John. 1J.4. Bailer’s N. P.,280. c, 281. Jackson vs. Raynor, 12 John-291.. [MAJORITY — Mr. Justice-STOB.vj] Mr. Justice-STOB.vj delivered the-opinion of. the Court.— . Messrs. Rabaud, Brothers 8c Co., of Marseilles, brought .a? suit in-the Circuit' Court 6f the southern district of New-York, against James D’Woif 'jun. (the plaintiff in error,)-to recover damages, for not shipping them 500 boxes of sugar on account, -of one George D’W.olf, according .to an. agreement entered into” by him with them. The declaration contained four counts;, and in eachof-themthe-'substance of-the contract stated, is that .the defendant, in consideration that one ¡Belknap (one of. the part-’ ners-hiíthe house of Rabaud, Brothers & Co.-,) would authorize George-,P’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 aferments,.-a«d breaches, necessary-to maintain the action: upon.the trial, under, the generafdssue, -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 óf 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 •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 Jiás 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 inconclusiye, 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 itsradmission, and the Objection was overruled. This constitutes the first ground of error, now insisted' on by the defendant. We are of opinion that-the letier 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 bverruled. 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. Wé can perceive-no error in this decision. If the defendant had entered, info 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 con'-tract,-and was unknown to them, it certainly ought not to prejudice their rights.- It was res inter alios acta: and had nole- . gal tendency either to disprove the plaintiffs’ case» or to exo' . nerate 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 daw. > The first.objection was tp 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, iipon 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, frbm 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, Just. Dear SirYou-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 & Cp- Marseilles, and oblige your friend and obédient servlnt, (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. 4 The first question to be settled, and which is matter of fact for your determination is, whether the derangement 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 ihancs. 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. 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 Jo-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 theprincipal 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, whe, ther the defendant did enter into the asserted agreement with the plaintiffs and whether it was a part of the originalarrangement, 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, só as to prevent parol evidence from being admissible, to charge the defendant. The statute of Frauds of New-Yorkj 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 eases .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*1 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 thepointwere entirely new, deserve very grave deliberation. But it hac 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 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 samé contract with C-to-do the’ act. Each-.is an original promise, though the on? 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 intuito, 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' cóntract, but as separate contractors upon co-existing con tracts,forming parts of the same general transaction. Of that very nature is the-contract now before the Go.urt; 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 considter 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 th.e.,agr’eement; 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 thepaper was so drawn up and executed, by the assent of all the parties, for the purpose of beting 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 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 he made upon the terms and iri_ the . manner, stated in it, there is nothing which-contradicts it’s 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 uninstruetiv.e 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 gestee, 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 fig stated in express .terms, or by necessary implication. That Case has from its origin-encounter-' ed. 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 thei other hand, there is a very elaborate opinion oi the Supreme Court of Massachusetts, in Packard vs. Richardsson (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 rulés 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'grqttnd of the credit-given to the principal or direct debtor; added, “ and if there was no consideratiomother 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 of the consideration was not improperly rejected. at the tríaí; aud the decision of the Court was, that it ought to have been • admitted. It is not -therefore; as was suggested at the argument, a- meré 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 béen- 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 js 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 entourage 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 he 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.