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 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 Belk-nap, 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 repioved 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, principally 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 Belk-nap’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 Bos
2. The next inquiry relates more 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 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. 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' Xou will read and judge for yourselves. 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 Belk-nap 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 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
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 proof in support of it, in relation to the letter of advice from Belknap to his co-partners, apprizing them of his having authorized the drafts of George D’Wolf. The declaration alleges, “that in consideration that the plaintiffs would authorize George D’Wolf to draw upon them for one hundred thousand francs, the defendant undertook and promised,” &e. 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 writing, 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 one hundred thousand francs. That in pursuance of such authority, he did 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 vessel as George D’Wolf should direct. He having become insolvent, wrote a letter to Belknap, authorizing him to make arrangement with the 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 the sugars. 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 bound personally to designate such vessel; he might do this by his agent, and the authority given to Belknap was constituting him such agent for that purpose; and the act of Belknap, in this respect, was, in judgment 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 making the shipment, because George D’Wolf had not furnished him with funds to purchase the sugars; and the objection that the vessel was not designated by George D’Wolf cannot now be set itp. The act of his agent was his 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 calculations which have been submitted to you, may be entirely laid aside, according to the view which I have taken of this question. I concur with the defendant’s counsel on this point, that the measure of damages must be the value of the sugars in New-York, at the time of the breach of the contract by the defendant, in refusing to make the shipment, according to his contract. If this was a question between George D’Wolf and the plaintiffs, for settling the amount of the proceeds of the sugars had they been shipped, it might have required the application of different principles. But the breach of contract, on the part of the defendant, consists in not making the shipment and consignment according to his undertaking. He 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 he had shipped the sugars on- board the vessel designated, consigned to the plaintiffs, his contract would have been complied with. The plaintiffs are accordingly entitled to recover the value of the sugars in New-York, at the time when the defendant was bound by his contract to make the shipment. This amount you will ascertain from the evidence that has been offered you on that subject.