Rabaud v. D'Wolf. defendant and one Bull of the value of the 500 boxes of sugar, compared with the amount to be advanced, the conclusion of which was an agreement, that the sugars should be shipped, and the authority given to draw, upon the defendant's engaging by letter to ship the sugars in behalf and on account of George D'Wolf, which form of a letter the said George D'Wolf submitted to Belknap, who assented to it, and the defendant having signed it, the authority to draw the bills was accordingly given. The letter referred to by the witness was as follows: Mr. James D'Wolf, jun. New-York, 15th Nov. 1825. Dear Sir-You will please ship for my account, on board of such vessel as I shall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brothers, & Co. Marseilles, and oblige your friend and obedient servant, Agreed to. James D'Wolf, jun. The authority to draw was as follows: George D'Wolf. New-York, 15th Nov. 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 honour his bills for that amount. Your obedient servant, A. E. Belknap. At the time of this transaction, George D'Wolf was indebted to the plaintiffs in the sum of 30,000 francs. It did not however, appear that the defendant knew of this circumstance. The sugars were to be shipped for the purpose of obtaining the 100,000 francs, George D'Wolf preferring the market of Rabaud v. D'Wolf. Marseilles to that of New-York; the proceeds to be placed in the defendant's hands on the bills being negotiated, in order to further the shipment, and not with reference to the accounts existing between George D'Wolf and the defendant. The plaintiffs were to have the usual commissions for accepting and paying the bills, and for the sale of the produce. The bills were drawn and accepted by the plaintiffs, and, as witness presumed, paid. The sugars which George D'Wolf had in the hands of the defendant, at the commencement of the transaction, amounting to from 300 to 400 boxes, were, 67 of them, remitted from Rhode Island by him to the defendant, on account of which he drew on the defendant for 4,000 dollars, and the remainder were purchased for him by the defendant, for which he gave in payment his own notes of hand. He was at the same time indebted to the defendant to a considerable amount. Belknap, however, was ignorant of every thing in relation to the purchase of the sugars. It was agreed between George D'Wolf and the defendant, that the former should remit the latter the proceeds of the bills when negotiated, upon which verbal promise the defendant granted his signature to the said letter. The defendant, when the letter was presented him, declined signing it until next morning, when he should see the said Bull. The next morning it was signed, and the defendant then pressed George D'Wolf for payment of what was due him. The defendant afterwards wrote George D'Wolf that he should not make the shipment until the remittances were made. It did not appear that Belknap knew of any understanding between George D'Wolf and the defendant. The bills were negotiated in Boston, from which place George D'Wolf was to remit the proceeds to the defendant. He actually remitted only 7,000 dollars. It was the intention of George D'Wolf to have shipped the sugars in a vessel of his own; but having become embarass Rabaud v. D'Wolf. ed, he wrote Belknap on the 27th of December, 1825, informing him, that owing to this circumstance the vessel which was to have come to New-York to take them, would fail to do so, and that he was at liberty to make any arrangements with the defendant which he might think proper for the interest of all concerned. The defendant objected to the admission of this letter, and excepted to the decision of the Judge allowing it to be read, for the purpose of showing an authority from George D'Wolf to Belknap to appoint a vessel. On the 3d of January, 1826, Belknap communicated this letter to the defendant, and gave him notice of his intention to provide a vessel, and the next day notified him that he had provided a good vessel for the purpose, and required him to ship the sugars in such vessel, or, if he preferred it, to procure another vessel and ship the sugars without delay. All the plaintiffs were proved to be aliens, except Belknap. Several witnesses, whose testimony is stated in the charge of the Court, were called to prove that Belknap was a citizen of Massachusetts. The defendant having moved for a nonsuit, and excepted to the decision of the Court disallowing it, called the said Bull as a witness, who testified, that he had been for nine years a confidential clerk of the defendant; that he was present at the interview at the defendant's store on the 15th of November, which lasted 10 or 15 minutes: That the defendant appeared, so far as the witness observed, to take very little interest in the conversation that was going on between George D'Wolf and Belknap, and no conversation of any importance passed between the latter and the defendant: That he, the witness, was writing at the desk, and occupied in his own affairs of business, and did not pay particular attention to the conversation of the parties: That defendant and Belknap might have conversed about the sugars without his knowing it, &c. The defendant offered to prove by said Bull, Rabaud v. D'Wolf. that there was an express agreement between George D'Wolf and the defendant, at the time the latter signed the letter of the 15th of November, that the former should furnish the latter with funds to purchase the sugars before he should be under any obligation to ship the same. This evidence was not admitted. W. SLOSSON, S. B. RUGGLES, and C. C. KING for the plaintiffs. T. A. EMMET and J. P. HALL for the defendants, insisted and desired the Court to charge the jury— That, as it appeared by the deposition of George D'Wolf, that the whole contract, agreement, or undertaking of the de fendant relative to the shipment of said 500 boxes of sugar, was in writing, no parol evidence could be admitted on the part of the plaintiffs, to prove their declaration, or to alter, enlarge, or in any way vary the written agreement of the defendant. That the letter from George D'Wolf to James D'Wolf, jun. dated November the 15th, 1825, did not prove, nor conduce to prove, the declaration of the plaintiffs, and was not evidence of any contract or agreement between the plaintiffs and the defendant, or of a promise from the defendant to the plaintiffs. That the letter, if it were any evidence of a contract or agreement between the plaintiffs and defendant, only conduced to prove a collateral undertaking on the part of the defendant, to ship 500 boxes of sugar in behalf of George D'Wolf, and consigned to the plaintiffs, and that the same was void by the statute of frauds. That the whole of the contracts or agreements offered in evidence on the part of the plaintiffs, were nuda pacta and void, both for want of mutuality and want of consideration. Rabaud v. D'Wolf. That no vessel had ever been designated by George D'Wolf, on board of which the defendant was directed by George D'Wolf to ship said 500 boxes of sugar, in pursuance of the stipulation contained in said letter of the 15th of November, 1825; and, that until such designation, no right of action accrued to the plaintiffs. That the plaintiffs had not offered any sufficient evidence to prove, and had not proved, any authority on the part of Belknap to appoint such a vessel. That there was a material variance between the declaration of the plaintiffs and the proof offered to support it, in this: that the plaintiffs, in their declaration, have set forth as the consideration of the undertaking on the part of the defendant, an authorization on the part of the plaintiffs to George D'Wolf, to draw bills of exchange upon the plaintiffs for 100,000 francs. Whereas it appears, by the deposition of George D'Wolf, that the said authorization on the part of the plaintiffs was in writing, and was for a blank number of francs, no sum being therein specified. That Belknap was not proved to be a citizen of the state of Massachusetts, nor of any state other than New-York; and that, therefore, the plaintiffs had failed to show any right to sustain their action in the Courts of the United States, and that this Court had no jurisdiction of this cause. THOMPSON, J. THIS case is of considerable importance in point of amount, and may be considered as a struggle between two innocent parties, to throw off from their own shoulders, a loss which must fall upon one or the other, by reason of the failure of George D'Wolf. In such cases it is reasonable to expect, that each party will urge with great zeal the points relied upon 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 |