D'Wolf v. Rabaud
26 U.S. 476 (1828)

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U.S. Supreme Court

D'Wolf v. Rabaud, 26 U.S. 1 Pet. 476 476 (1828)

D'Wolf v. Rabaud,

26 U.S. (1 Pet.) 476

Syllabus

A nonsuit may not be ordered by the court in any case without the consent and acquiescence of the plaintiff.

A question of the citizenship of a party to a cause cannot constitute a part of the issue on the merits, and must be brought forward by a proper plea in abatement in an earlier stage of the cause than the trial on the merits.

The statute of frauds of New York is a transcript on this subject of the statute 29 Charles II, 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 the writing and signed by the party or by someone by him authorized. The words "collateral" or "original" promise do not occur in the statute, and have been introduced by courts to explain its objects and expound its true interpretation.

Whether, by the true intent of the statute of frauds it was to extend to cases where the collateral promise (so called) was a part of the original agreement and founded on the same consideration moving at the same time between the parties, or whether it was confined to cases where there was already a subsisting debt or demand and the promise was merely founded upon a subsequent and distinct understanding might, if the point were entirely new, deserve very great 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 recognized 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 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 is not coincident with nor the same contract with C to do the act. Each is an original promise, though the one may be deemed subsidiary or secondary to the other. The original consideration flows from A not solely upon the promise of either B or C, but upon the promise of both diverso intuitu, 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 case of Wain v. Walters, 5 East 10, was the 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 case has been adopted to a limited extent by the courts of New York into its jurisprudence as a sound construction of the statute.

Page 26 U. S. 477

The decisions in the courts of New York on the construction of its own statute and the extent of the rules deduced from it present to this Court a guide in its decisions upon the construction of their statute.

The defendants in error brought an action of assumpsit in the Circuit Court of the United States for the Southern District of New York 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 only were relied upon at the trial.

The first count stated that at the time of making the respective promises and undertakings of the defendant, the plaintiffs were co-partners in trade, carrying on business at Marseilles in France, under the firm of Rabaud Brothers & Company. That one George D'Wolf, of Bristol, Rhode Island, being desirous of drawing upon the plaintiffs at Marseilles, for 100,000 francs, on 15 March, 1825, at New York, in consideration that the plaintiffs, at the special instance and request of the defendant, would authorize the said George D'Wolf to draw bills of exchange upon the plaintiffs for the said sun of 100,000 francs, the defendant undertook and promised that he would ship for the account 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 16 November, 1825, and paid by the plaintiffs on 3 March, 1826. That on 4 January, 1825, at the City of New York, George 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, on board 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 promise and undertaking, of all which promises the defendant had notice, and although he was 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 plaintiffs, at the request of the defendant, would authorize George D'Wolf to draw bills of exchange upon them at Marseilles for another sum of 100,000 francs on account of other five hundred

Page 26 U. S. 478

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 making 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, to be shipped by the defendant on account of George D'Wolf and consigned to the plaintiffs at 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 evidence by the testimony of George D'Wolf, who was examined under a commission at Havana, that he, George D'Wolf, had several 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, Jr., the plaintiff in error; and thirdly at the boarding house of Mr. Belknap. James D'Wolf, Jr., was present at the first interview, and 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 to 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 Jr., 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 D'Wolf Jr., 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

Page 26 U. S. 479

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 Jr., and the authority to draw granted and used accordingly.

This letter, and the authority to draw, are in the following terms:

"New York, 15 November, 1825"

"MR. JAMES D'WOLF, JR."

"Dear Sir: You will please ship for my account, on board of such a vessel as I shall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brother & Co. Marseilles, and oblige your friend and obedient servant."

"GEORGE D'WOLF"

"Agreed to, JAMES D'WOLF, JR."

"New York, 15 November, 1825"

"Messrs. RABAUD, BROTHERS & CO., Marseilles"

"I have this day authorized George D'Wolf Esq. to draw on you for _____ thousand francs, and I request you to honor 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, about 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: $13,000 remitted to Mr. James D'Wolf in checks on the bank and in an acceptance of Isaac Clapp, a broker 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 negotiation 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 $4,000, and the remainder were purchased for his account by Mr. James D'Wolf Jr., and at the same time he was indebted to Mr. James D'Wolf Jr. a considerable amount.

Page 26 U. S. 480

Mr. George D'Wolf also testified that the sugars to be shipped were to be on his account, and not 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 to the letter of 15 November, 1825. Mr. James D'Wolf afterwards wrote to the witness that he should decline to make the shipment in question until he should receive the remittances agreed upon. When the letter was first presented, Mr. James D'Wolf declined signing it, deferring 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 sole object the shipment of the sugars to Marseilles, that market being preferred to New York, and to place in the hands of Mr. James D'Wolf, Jr. the proceeds of the bills in order to further the shipment, and not with reference to accounts existing between 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 he did not know that Mr. Belknap was acquainted with the circumstance that the proceeds of the bills were to go to the plaintiff in error or with the state of accounts between him and Mr. James D'Wolf, Jr.

Evidence was 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 native citizen of the United States, had resided some years in France, and now, always considering Boston as his home, resided in Boston, where he lodged in a boarding house, in which he hired rooms by the year, and was understood to pay taxes in Boston; his letters of business were addressed to Boston, and he was absent from there in the United States occasionally for the purposes of transacting business for the firm in Marseilles.

Soon after the negotiation of 15 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 following letter:

"Bristol, R.I. 27 December, 1825"

"M. A. E. BELKNAP."

"Dear Sir,"

"I am in receipt of yours of the 23d instant, and note its contents. Owing to my embarrassments, the Magnet, which I

Page 26 U. S. 481

had wrote you would proceed to New York to take the sugars which Mr. James D'Wolf, Jr. 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 for the interest 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 me, very truly your friend,"

"GEORGE D'WOLF"

Which letter was upon 27 December, 1825 shown to the plaintiff in error by Mr. Belknap and a copy of the same was, upon 3 January, 1826, delivered to him enclosed in the following letter:

"New York, January 3, 1826"

"MR. JAMES D'WOLF Jr., New York"

"Sir: I enclose you a copy of 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 I shall require you (according to your contract of t15 November last) to ship for account of Mr. George D'Wolf five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brothers & Co., Marseilles."

"Your obedient servant,"

"A. E. BELKNAP"

On 4 January, 1826, Mr. Belknap addressed the plaintiff in error in the following terms:

"New York, January 4 1826"

"MR. JAMES D'WOLF Jr., New York"

"Sir: In pursuance of the notice I 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 sugar. 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 15 November last. Herewith is a copy of a letter I addressed to Mr. George D'Wolf on 23 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 objection,

Page 26 U. S. 482

provided you 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 5 1826"

"MR. A. E. BELKNAP."

"Sir: In answer to your letter of the 4th instant, I have merely 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. Rabaud, Brothers & Co. at Marseilles."

"Your obedient servant,"

JAMES D'WOLF JR.

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 customary charge for the same.

The plaintiffs in error objected at the trial to the reading of the letter 27 December, 1825, from George D'Wolf to Mr. Belknap, which objection was overruled by the court.

On the part of the plaintiffs in error, at the trial of the cause before the circuit court, Frederick G. Bull was introduced as a witness, whose testimony is stated in the bill of exceptions to have been given as follows:

That he is, and for nine years past has been, a confidential clerk in the employment of the said James D'Wolf, Jr.; that he was present at the counting room of the said defendant on 15 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, Jr.; that the said George D'Wolf and Andrew E. Belknap came into the counting room on 15 November in company, and were conversing together; that they there found the said James D'Wolf, Jr., and the witness; that after some little time had elapsed, the said James D'Wolf, Jr. 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, Jr., and asked him how much five hundred

Page 26 U. S. 483

boxes of sugar would bring or amount to at some specified price; that the said James D'Wolf, Jr. turned to the witness and asked him to make the calculation; that the witness did make a hasty calculation, and gave for answer, "about $17,000;" that he heard no proposition made by the said James D'Wolf, Jr., to the said Andrew E. Belknap, nor by the said Andrew E. Belknap to the said James D'Wolf, Jr., 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, Jr., 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'Wolf, Jr., left the counting room for a short time and returned; that the said James D'Wolf, Jr., 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, Jr., 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, Jr., during part of the time of the said interview, was walking about his counting room 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 the said sugar; that the said George D'Wolf was, on 15 November, 1825, and for a long period anterior thereto, and ever since has been, largely indebted to the said James D'Wolf, Jr.; that the sum of $13,000, 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;

Page 26 U. S. 484

that George D'Wolf did, on or about 23 November, 1825, remit to the defendant, his, George D'Wolf's, draft for $6,000, on Isaac Clapp, of Boston, at three days' sight, and a check upon the United States Branch Bank at New York for $1,000, which said draft and check were both paid and the amount thereof received by the said James D'Wolf, Jr.; 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 $7,000, 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 nonpayment and still remains due and unpaid.

The counsel for the defendant below then offered to prove by Mr. Bull that there was an express understanding and agreement between the defendant and George D'Wolf at the time the said letter of 15 November was signed by the defendant that the latter should furnish 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 28, 1825"

"MR. JAMES D'WOLF, Jr.."

"Dear Sir,"

"I send you my draft on Mr. Clapp for $6,000 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 or four days. Last sales 19 1/4 cents; money very scarce; the New Yorkers have sent on a great deal of paper; banks stopped discounting. He will remit you the balance 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 $1,000, making $7,000 which credit this account."

"I am your friend and obedient servant,"

"GEORGE D'WOLF"

Page 26 U. S. 496

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