D'Wole v. Jacques

ERROR to the Circuit Court of New-York, for the Southern District.

The defendants in error, brought an action of assumpsit, in the Circuit Court of the United States for the Southern District of New-York, against the plaintiff in error, to recover damages for the breach of his contract, to ship to them, at Marseilles, five hundred boxes of white Havana sugar.

The declaration contains several special counts; of which the first and second only were relied upon at the trial.

The first count stated, that at the time of making the respective promises and undertakings of the defendant, the plaintiffs were co-partners in trade, carrying on business at Marseilles in France, under the firm of Rabaud, brothers and company. That one George D'Wolf, of Bristol, Rhode Island, being desirous of drawing upon the plaintiffs at Marseilles, for 100,000 francs; on the 15th March 1825, at New-York, in consideration that the plaintiffs, at the special instance and request of the defendant, would authorize the said George D'Wolf to draw bills of exchange upon the plaintiffs for the said sun of 100,000 francs, the defendant undertook, and promised, that he would ship for the account of George D'Wolf, on board of such vessel as George D'Wolf should direct, five hundred boxes of white Havana sugars, consigned to the plaintiffs at Marseilles, and the plaintiffs afterwards did duly authorize George D'Wolf to draw bills of exchange upon them at Marseilles, for the said sum of 100,000 francs, which bills were drawn by him on the 16th of November 1825, and paid by the plaintiffs on the 3d day of March 1826. That on the 4th day of January 1825, at the city of New-York, George D'Wolf did direct and name a vessel, the brig Quito, then laying in the port of New-York, and ready to receive the said sugars, on board of which vessel the sugar should and ought to have been shipped, by the defendant, on account of George D'Wolf, and consigned to the plaintiffs at Marseilles, according to his said promise and undertaking; of all which promises the defendant had notice; and although he was then and there requested to ship the sugar on board the said vessel, yet he did wholly refuse the same.

The second count differs from the first only in stating the contract to have been, that, 'in consideration that the plaintiffs, at the request of the defendant, would authorize George D'Wolf to draw bills of exchange upon them at Marseilles, for another sum of 100,000 francs, on account of other five hundred boxes of white Havana sugar, to be shipped by the defendant for account of George D'Wolf, on board of such vessel as George D'Wolf should direct, and consigned to them the plaintiffs at Marseilles, the defendant undertook, &c.' and averring, that relying on the promise and undertaking of the defendant so made, they, the plaintiffs, after the making thereof, did duly authorize George D'Wolf to draw bills of exchange upon them for another sum of 100,000 francs, on account of the last mentioned five hundred boxes of white Havana sugars, to be shipped by the defendant on account of George D'Wolf, and consigned to the plaintiffs at Marseilles.

The cause was tried at the October term of the Circuit Court of the United States, for the Southern District of New-York, in 1826, when the jury, under the charge of the Court found a verdict for the plaintiffs below for $19,950 85. The opinion of the Court, in the charge to the jury, was excepted to by the counsel for the deffendant, and a bill of exceptions sealed by Mr. Justice Thomson, sitting as Judge of the Circuit Court; and the opinion delivered by him, states the evidence adduced in the cause.