Rabaud v. D'Wolf.

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 I have already had occasion to say, in disposing of the motion for a nonsuit.

The result, in the 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 province to decide, and for the purpose of enabling the parties to avail themselves of whatever exceptions they may have to take, many remarks may be made in the course of my charge to you, which, in strictness, are not to be addressed to a jury.

1. The first question arising is, whether the plaintiffs have shown themselves entitled, under the constitution and laws of the United States, to come into this Court to prosecute their action. It has not been denied but that all 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 defendant, that this averment has not been proved.

From the evidence it appears that Belknap was either born in Boston, or removed there with his father at a very early age, from New-Hampshire, and continued to live in Boston until he went to France, where he remained ten or twelve years, when he returned to Boston. That he is an unmarried man, having no family, lives at lodgings, has rooms, as one of the witnesses understood, hired by the year, and is there about two-thirds of the time. The residue of the time he is absent on business of the firm, of which he is a partner, prin

Rabaud v. D'Wolf.

cipally in New-York and Philadelphia, and other cities of the United States. One of the witnesses testified, that on one occasion he went with him to town-meeting to vote at an election-he did not see him vote, but understood he 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 his place of residence, if they did not know of his absence.— That letters from abroad are addressed to him at 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 United States cannot be questioned; and if a citizen of any particular state, within the sense and meaning of the constitution and law, it must be of Massachusetts. No evidence has been offered to raise a doubt on this point. Whenever absent from Boston it was temporarily, and on the business of the plaintiffs. 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 not appear to stand in this situation; his domicil, 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 action; and to deprive him of that privilege, would be extending their disability beyond the reason and policy of the law. The facts in relation to Belknap do not appear to be in dispute, so far as I have understood them; and if, according to your understanding of the evidence, they are as I have stated, the averment, that he is a citizen of the state of Massachusetts, is sufficiently proved.

2. The next inquiry relates more to the merits of the cause,

Rabaud v. D'Wolf.

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 by 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 hundred 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 to ship for his account, five hundred boxes of white Havana sugar, consigned to the plaintiffs, and under-written by the defendant," agreed to," is the principal evidence in the cause to establish the

contract.

It is said that this letter, under the statute of fraud, does not, on its face, 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. 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,

Rabaud v. D'Wolf.

For although Mr. Bull did not hear the defendant assent 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, at most, but 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 you when you withdraw to make up your verdict. You will read and judge for your

selves.

I understand him to say, that the defendant was with him when they first met in 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 was then concluded, as contained in the letter of the 15th of November, 1825. The consideration for their 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; and I think it may be, 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 an 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

Rabaud v. D'Wolf.

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 shipment, was certainly the principal, if not 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, and rested on the engagement of the defendant to make the shipment and consignment. If the contract of the defendant was entered into at his 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, or putting into the shape agreed upon, and consummating the arrangement, and would have relation, as between these 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 you 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 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, is unnecessary to decide, because no such consideration has been proved, if it was admissible to supply it by parol evidence.

3. It is said in the next place, that the plaintiff has failed. in establishing a right to recover in this action, by reason of a variance between the allegation in the declaration and the