Black et al. vs. Zacharie & Co.

have the high authority of the State court in this very matter, that there is nothing in the jurisprudence of Louisiana which forbids giving full effect and validity to an assignment of debts, credits, and equities, situate in that State, where the assignment is valid and effectual by the law of the State where it is made, so as to oust the rights of attaching creditors who have due notice thereof. Now, in the case before us, there is plenary evidence that the assignment was valid and effectual by the laws of South Carolina, when and where it was made, to pass the right to the property in controversy; and that the attaching creditors had notice thereof before their attachment was made, so that its validity and effect are the same in Louisiana as in South Carolina. It is true that the legal title could not pass without a regular transfer of the stock upon the books of the corporation, but it is equally true that the title to the property, subject to the pledge thereof, was complete in the assignee, so as to bind the banks as well as the attaching creditors, after due notice to them respectively. We are, therefore, of opinion that the district judge erred in directing the jury that the delivery of the stock was not complete unless the transfer was entered upon the books of the banks. That was true as to the absolute legal title, but it did not prevent the equitable title from passing to and becoming completely vested in the assignee under and in virtue of the assignment, so as to bind the attaching creditors, as soon as they had notice thereof, and in like manner the banks, as soon as they had notice thereof.

Upon both grounds, therefore, stated in the exceptions, the judgment of the Circuit Court is reversed, and the cause remanded to that court with directions to award a venire facias de novo.

It was at one time held by the courts of Maine and Massachusetts, that the voluntary assignment of personal property by the owner residing abroad, would not prevail over a subsequent attachment of the same, under the law of the place where it was situate. Fox vs. Adams, 5 Greenl. 245; Ingraham rs. Geyer, 13 Mass. Rep. 146. But in Massachusetts, however it may be in Maine, more recent decisions have overruled this narrow doctrine, and made the law conformable to those broad principles of international jurisprudence, which are referred to in this case, as of almost universal reception. See, Means vs. Hapgood, 19 Pick. 105. Chancellor Kent, indeed, went so far in the case of Holmes vs. Remsen, 4 Johns. Ch. Rep. 460, as to maintain the validity of a transfer of personal property situate in this country, under the bankrupt law of a foreign country. But this decision, it must be admitted, is opposed to the entire current of American authority, by which the distinction between a voluntary and an involuntary assignment, or between the act of the party and the operation of the law, is well settled.

STATUTE OF FRAUDS.

D'WOLF US. RABAUD ET AL.

What Agreement or Undertaking is embraced by the Statute of Frauds, and whether the consideration, as well as the promise, must be expressed in writing.

MR. JUSTICE STORY delivered the opinion of the Court. Messrs. Rabaud Brothers & Co., of Marseilles, brought a suit in the Circuit Court of the Southern District of New York, against James D'Wolf, Jun. (the plaintiff in error), to recover damages for not shipping them 500 boxes of sugar on account of one George D'Wolf, according to an agreement entered into by him with them. The declaration contained four counts, and in each of them, the substance of the contract stated is, that the defendant, in consideration that one Belknap (one of the partners in the house of Rabaud Brothers & Co.) would authorize George D'Wolf to draw on the plaintiffs for 100,000 francs, undertook and promised that he would ship for the account of George D'Wolf, on board such vessel as he, George D'Wolf, should direct, five hundred boxes white Havana sugar, consigned to the plaintiffs, at Marseilles. The declaration then proceeds with the proper averments, and breaches, necessary to maintain the action upon the trial, under the general issue, the jury found a verdict for the plaintiffs, and judgment was given for them accordingly. The cause now comes before this Court upon a writ of error, and bill of exceptions, taken at the trial.

The bill of exceptions is voluminous, and contains, at large, the evidence admitted at the trial, as well as the charge of the learned judge who presided at the trial. It is unnecessary to refer to that evidence, or to consider its nature, bearing, and extent, upon which so ample a comment has been made at the bar, except so far as it applies to some question of law decided by the Court, to which an exception has been taken. The whole

1 Peters, 476.

D'Wolf vs. Rabaud et al.

facts were left open to the jury, and so far as they were imperfect, or inconclusive, the defendant has had the fuil opportunity of addressing his views to the jury, and they have found their verdict against him.

In the progress of the trial, a letter of the 27th of December, 1825, written by George D'Wolf to Belknap, was offered by the defendants in evidence, for the purpose of showing an authority from George D'Wolf to Belknap, to direct or name a vessel to the defendant, on board of which the sugars might be shipped. The defendant objected to its admission, and the objection was overruled. This constitutes the first ground of error, now insisted on by the defendant. We are of opinion that the letter was rightly admitted, for both of the reasons stated in the charge. It was evidence of such an authority; and the defendant made no objection to it at the time, on account of any insufficiency in this respect: but put his defence by his letter of the 5th of January, 1826, on an entirely distinct ground.

After the evidence for the plaintiffs was closed, the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this Court. A nonsuit may not be ordered by the Court, upon the application of the defendant, and cannot, as we have had occasion to decide, at the present term, be ordered in any case without the consent and acquiescence of the plaintiff, Elmore vs. Grymes, 1 Peters, 469. In the further progress of the trial, upon the examination of one Frederick G. Bull, a witness for the defendant, the counsel for the defendant offered to prove, by Bull, that it was an express understanding and agreement between the defendant and George D'Wolf, at the time the letter of the 15th November, 1825 (which will be hereafter more particularly noticed), was signed by the defendant; that the latter should furnish the defendant with the funds necessary for the purchase of the sugar, before the defendant would be under any obligation to ship the same. This testimony was rejected by the Court, unless it should also appear that Belknap was party thereto, or that the same was brought home to his knowledge. We can perceive no error in this decision. If the defendant had entered into the contract with the plaintiffs stated in the declaration, and the private arrangement made between the defendant and George D'Wolf constituted no part of that contract, and was unknown to them, it certainly ought not to prejudice their rights. It was res inter

D'Wolf vs. Rabaud et al.

alios acta; and had no legal tendency either to dispose the plaintiffs' case, or to exonerate the defendant from his liability.

The other exceptions are exclusively confined to the charge given to the jury, upon the summing of the Court, upon points of law.

The first objection was to the sufficiency of the evidence to establish the citizenship of Belknap, as averred in the declaration. This is now waived by the counsel, and indeed could not now be maintained, because it has been recently decided by this Court, upon full consideration, that the question of such citizenship constitutes no part of the issue upon the merits, and must be brought forward by a proper plea in abatement, in an earlier stage of the cause.

The great question upon the merits arises upon that part of the charge, which relates to the agreement contained in the letter of the 15th of November, 1825, from George D'Wolf to the defendant, and the accompanying assent of the latter, with reference to the Statute of Frauds.

That letter is in the following terms :

MR. JAMES D'WOLF, Jun.

NEW YORK, 15th November, 1825.

DEAR SIR-You will please ship for my account, on board 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,

(Signed)

Agreed to (Signed), JAMES D'WOLF, Jun.

GEORGE D'WOLF.

Upon this part of the case, the charge was as follows:-" It is said that this letter, under the Statute of Frauds, does not purport on its face to 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 judge then proceeded to sum up the

D'Wolf vs. Rabaud et al.

evidence on this point, and added, "The consideration for this undertaking was the authority given by Belknap to George D'Wolf, to drawn on the plaintiffs for one 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, 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 one entire transaction. The evidence does not, in any manner, contradict the written agreement; and is perfectly consistent with it; as between the plaintiffs and George D'Wolf the consideration might be clearly supplied by parol proof; and if the undertaking of the defendant was at the same time, it required no consideration from the plaintiffs to him, the consideration to George D'Wolf was sufficient to uphold and support the contract of the defendant." And he finally stated that if he was mistaken in this view of the evidence "and the jury should be of opinion, that the contract between Belknap and George D'Wolf was completed, and unconnected with the enagement of the defendant, before he undertook to make the shipment and consignment; then the evidence was not sufficient to maintain the present action. It will then be a collateral undertaking, made subsequent to the principal contract, and would require some other consideration than that which supported the principal contract."

The question, then, so far as it was a question of fact, whether the defendant did enter into the asserted agreement with the plaintiffs, and whether it was a part of the original arrangement with George D'Wolf, and upon the original consideration moving from the plaintiffs, was before the jury, and they have found in the affirmative. The question of law remains, whether this was a case within the Statute of Frauds, so as to prevent parol evidence from being admissible, to charge the defendant.

The Statute of Frauds of New York is a transcript, on this subject, of the statute of 29th of Charles 2, 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 writing and signed by the party, or by any one by him authorized." The terms "collateral" or "original" promise, do not occur in the statute, and have been introduced by courts of law to explain its objects and expound its true interpretation.