James Wole, Junior Plaintiff In Error v. David Jacques Rabaud, Jean Philippe Frederick Rabaud, Alphonse Marc Rabaud, Aliens and Subjects of the King of France, and Andrew Belknap Citizen of the State of Massachusetts, Defendants In Error

Decision Date01 January 1828
Citation1 Pet. 476,26 U.S. 476,7 L.Ed. 227
PartiesJAMES D'WOLE, JUNIOR, PLAINTIFF IN ERROR, v. DAVID JACQUES RABAUD, JEAN PHILIPPE FREDERICK RABAUD, ALPHONSE MARC RABAUD, ALIENS, AND SUBJECTS OF THE KING OF FRANCE, AND ANDREW E. BELKNAP, A CITIZEN OF THE STATE OF MASSACHUSETTS, DEFENDANTS IN ERROR
CourtU.S. Supreme Court

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.

On the trial of the cause in the Circuit Court, the plaintiffs below, gave evidence, by the testimony of George D'Wolf, who was examined under a commission at Havana, that he George D'Wolf, had several transactions with the plaintiffs previous to that which gave rise to this suit, and had at various times drawn bills on them. That he had three interviews with Mr. Belknap, on the subject of the shipment of the sugars; which interviews were had, first in Wall street in the city of New York; secondly, at the counting house of James D'Wolf, Jun., the plaintiff in error; and thirdly at the boarding house of Mr. Belknap. James D'Wolf, June. was present at the first interview, and he with a certain Frederick G. Bull was present at the second, at his counting house.

Mr. George D'Wolf stated, that the transactions relative to the shipment of the sugars were; that, in Wall street, he proposed to Mr. Belknap to address him five hundred boxes of sugars to the house at Marseilles, on receiving authority to draw on account of the same, to the extent of 100,000 francs. Mr. Belknap, being engaged, an interview was proposed at the counting house of Mr. James D'Wolf Jun., which took place, and at which Mr. Belknap observed, that the advance was heavy; and a calculation was made by F. G. Bull, the confidential clerk of Mr. James D'Wolf Jun., and by Mr. James D'Wolf himself, of the value of the sugar, compared with the proposed advance; the conclusion of which was, an agreement that the sugars should be shipped, and the authority to draw granted to George D'Wolf; Mr. James D'Wolf engaging, by letter, to ship the sugars in behalf of George D'Wolf; which form of letter was afterwards carried by George D'Wolf to Mr. Belknap, was assented to by him; was signed by Mr. James D'Wolf Jun.; and the authority to draw granted and used accordingly.

This letter, and the authority to draw, are in the following terms:——

New-York, 15the November 1825.

MR. JAMES D'WOLF, JUN.

Dear Sir:—You will please ship for my account, on board of such a vessel as I shall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brother & Co. Marseilles, and oblige your friend and obedient servant.

GEORGE D'WOLF.

Agreed to, JAMES D'WOLF, JUN.

New-York, 15th November 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 to that amount.

Your obedient servant, A. E. BELKNAP.

Mr. George D'Wolf also stated, that his object was to ship the sugars in one of his own vessels; that he was then indebted to the house in Marseilles, about thirty thousand francs, but could not say that Mr. James D'Wolf knew of the debt. The sugars were shipped to obtain the usual advance, and the consignees were to have the usual commissions in the transaction.

Bills, to the amount of the advance were afterwards drawn and negotiated in Boston, and the proceeds of the same applied as follows:—13,000 dollars remitted to Mr. James D'Wolf, in checks on the bank, and in an acceptance of Isaac Clapp, a broker in Boston; and the residue of the proceeds of the transaction passed to the account of George D'Wolf by Mr. Clapp. It was admitted, that the bills were regularly paid at Marseilles, by the defendants in error.

It was also in evidence, by the testimony of Mr. George D'Wolf, that at the time of the negotiation for the bills, Mr. George D'Wolf had in the hands of the plaintiff in error, from three to four hundred boxes of sugar; of which sixty had been remitted from Rhode Island, on account of which he drew the sum of four thousand dollars, and the remainder were purchased for his account by Mr. James D'Wolf Jun.; and at the same time he was indebted to Mr. James D'Wolf Jun. a considerable amount.

Mr. George D'Wolf also testified that the sugars to be shipped were to be on his account, and not on that of the plaintiff in error—that the agreement with Mr. James D'Wolf was that the proceeds of the negotiation of the advance should be remitted to him, and upon this verbal agreement, Mr. James D'Wolf granted his signature to the letter of the 15th of November 1825. Mr. James D'Wolf afterwards wrote to the witness, that he should decline to make the shipment in question, until he should receive the remittances agreed upon. When the letter was first presented, Mr. James D'Wolf declined signing it, deferring it to the next morning, when he should see Mr. Bull; and it was signed the next morning. That the letter or memorandum of agreement, had for its sole object the shipment of the sugars to Marseilles, that market being preferred to New-York; and to place in the hands of Mr. James D'Wolf Jun. the proceeds of the bills, in order to further the shipment; and not with reference to accounts existing between him and the plaintiff in error; and that the plaintiff in error, knew the defendants, and particularly Mr. Belknap, in the transaction as stated.

Mr. George D'Wolf also stated in his evidence, that he did not know that Mr. Belknap was acquainted with the circumstance that the proceeds of the bills were to go to the plaintiff in error; or with the state of accounts between him and Mr. James D'Wolf junior.

Evidence was also given to show, that the plaintiffs below carried on business in Marseilles, in France, and that all of the said parties, with the exception of Mr. Belknap, were native subjects of France; and that Mr. Belknap was a native citizen of the United States, had resided some years in France, and now, always considering Boston as his home, resided in Boston; where he lodged in a boarding-house, in which he hired rooms by the year; and was understood to pay taxes in Boston; his letters of business were addressed to Boston; and he was absent from there in the United States, occasionally, for the purposes of transacting business for the firm in Marseilles.

Soon after the negotiation of the 15 November, Mr. George D'Wolf became insolvent, and at...

To continue reading

Request your trial
32 cases
  • Galloway v. United States
    • United States
    • U.S. Supreme Court
    • May 24, 1943
    ...judicial power at jury expense was at first denied federal courts. Doe ex dem. Elmore v. Grymes, 1 Pet. 469, 7 L.Ed. 224; DeWolf v. Rabaud, 1 Pet. 476, 7 L.Ed. 227; but cf. Coughran v. Bigelow, 1896, 164 U.S. 301, 17 S.Ct. 117, 41 L.Ed. As Hamilton had declared in The Federalist, the basic ......
  • Morbeck v. Bradford-Kennedy Co.
    • United States
    • Idaho Supreme Court
    • December 21, 1910
    ...118 U.S. 279, 6 S.Ct. 1050, 30 L.Ed. 167; Kansas City R. R. Co. v. Daughtry, 138 U.S. 298, 11 S.Ct. 306, 34 L.Ed. 963; D'Wolf v. Raband, 1 Pet. (U.S.) 476, 7 L.Ed. 227.) judgment entered in this case against appellants, taking a large amount of their property from them, denying them a heari......
  • Nutt v. General Motors Acceptance Corporation of Indiana
    • United States
    • U.S. Supreme Court
    • May 18, 1936
    ...issue was thus raised, the burden of proof was upon the defendant. The objection was waived by pleading to the merits. D'Wolf v. Rabaud, 1 Pet. 476, 498, 7 L.Ed. 227; Sheppard v. Graves, 14 How. 505, 510, 14 L.Ed. 518; De Sobry v. Nicholson, 3 Wall. 420, 423, 18 L.Ed. 263; Farmington v. Pil......
  • Lillian Slocum v. New York Life Insurance Company
    • United States
    • U.S. Supreme Court
    • April 21, 1913
    ...constitutional right this court has always guarded with jealousy. Doe ex dem. Elmore v. Grymes, 1 Pet. 469, 7 L. ed. 224; D'Wolf v. Rabaud, 1 Pet. 476, 7 L. ed. 227; Castle v. Bullard, 23 How. 172, 16 L. ed. 424; Hodges v. Easton, 106 U. S. 408, 27 L. ed. 169, 1 Sup. Ct. Rep. In principle, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT