E.B.C., having an interest in a cargo at sea, agreed with J.W.
for the sale of it, and J.W. signed the following agreement in
writing;
"J.W. agrees to purchase the share of E.B.C. in the cargo of the
ship
Aristides, W.P.Z., supercargo, say at $2,522.83, at
fifteen percent advanced on said amount, payable at five months
from this date, and to give a note or notes for the same, with an
approved endorser."
In compliance with this agreement, J.W. gave his notes for the
sum mentioned, and in an action upon the notes, the want of a legal
consideration under the statute of frauds being set up as a defense
on the on the ground of the defect of mutuality in the written
contract, the court below left it to the jury to infer from the
evidence an actual performance of the agreement, the jury found a
verdict for the plaintiff, and the court below rendered judgment
thereon. The judgment was affirmed by this Court.
Page 17 U. S. 86
JOHNSON, JUSTICE, delivered the opinion of the Court.
The suit below was instituted on a promissory note by the
defendant in error. Although it is in fact an endorsed note and so
declared on, yet it is admitted to have originated in a negotiation
between the maker and endorser, and whatever defense would be good
as against the promisee is admitted to be maintainable against this
endorser, the endorser standing only on the ground of a security or
ordinary collateral undertaker to the maker. The defense set up is
the statute of frauds, not under the supposition that a promissory
note is a contract within the statute, but on the ground that this
note was given for a consideration which was void under the
statute.
The case was this:
Caldwell having an interest in a cargo afloat, agrees with
Weightman for the sale of it, and Weightman signs the following
memorandum, expressive of the terms of their agreement:
"John Weightman agrees to purchase the share or interest of
Elias B. Caldwell in the cargo of the ship
Aristides, W.
P. Zantzinger, say $2,522.83, at fifteen percent advance on said
amount, payable at five months from this date, and to give a note
or notes for the same with an approved endorser."
"JOHN WEIGHTMAN"
"Washington, May 20, 1816. "
Page 17 U. S. 87
In compliance with that agreement, Weightman gives his note for
the sum agreed upon, which is afterwards renewed, and this note
taken, on which this action is instituted. At the trial below,
Weightman's counsel moved the court to instruct the jury that
"If no bargain or agreement for the sale of the plaintiff's
share of the said ship
Aristides, nor any note or
memorandum in writing of the same, was ever signed by the plaintiff
binding him in writing to sell his said share to defendant, and if
defendant did never actually receive or accept any part of said
cargo and gave nothing in earnest to bind said bargain or in part
payment, and if plaintiff has never made or tendered any written
transfer or bargain of his said share to the defendant, but if the
entire obligation, reciprocally binding plaintiff to sell said
share was verbal and formed the sole consideration for the said
note, then there is no adequate consideration for the said note and
plaintiff is not entitled to recover upon said note."
This instruction the court refused to give, but instructed the
jury that if it should be of opinion from the evidence that the
defendant executed and delivered to the plaintiff the note upon
which this action is brought, and that the said note was given in
consideration of the purchase of the plaintiff's share or interest
in the said cargo of the said ship
Aristides, as stated in
the aforesaid writing, &c., and that the said cargo was then on
the high seas on its passage from France to the United States, and
that the same has since arrived and has never come to the
possession of the plaintiff, that the
Page 17 U. S. 88
plaintiff had an interest in the said cargo, and that the
defendant never demanded of the plaintiff any written assignment of
his share of the said cargo, then the statute of frauds is no bar
to the plaintiff's recovery, and that the said note is not, by
reason of the said statute, void as being given without
consideration.
Taking the charge prayed for and the charge given together, they
appear to make out the following case:
The defendant moved the court to instruct the jury that the note
which was the cause of action was void for want of consideration
inasmuch as it was given in compliance with an agreement signed by
one party and not the other, and which, being unattended with any
actual delivery of the article sold, was, as he contended, void
under the statute of frauds. The court, without denying the
principles laid down by the defendant, submitted the whole case to
the jury and instructed it that upon that evidence it was at
liberty to infer an actual execution of the agreement by both
parties, and thus take the case entirely out of the operation of
the statute of frauds. Under this construction of the bill of
exceptions, for it must, like all other instruments, be the subject
of construction, we are decidedly of opinion that the judgment
below must be affirmed. Whether right or wrong, the defendant had
all the benefit of the law that his case admitted of, and therefore
this Court is not called upon to express a judgment on its
correctness. The court below were clearly right in submitting the
question of execution to the jury. If there had ever been a
doubt
Page 17 U. S. 89
entertained on this point, it is now removed by numerous
adjudications.
Judgment affirmed.