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1819.

evidence. Under what circumstances these rules permit the invocation of papers and depositions, may be seen, ante, vol. II. Appendir, note I. p. 23.

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B. B. C., having an interest in a cargo at sea, agreed with J. W. for

the sale of it, and J. W. signed the following agreement in writing: “J. W. agrees to purchase the share of E. B. C. in the cargo of the ship Aristides, W. P. Z., supercargo, say at $2,522 83, at fifteen per cent. advance on said amount, payable at five months from this date, and to give a note or notes for the same, with an approved endorser.” In compliance with tbis agreement, J. W. gave bis notes for the sum mentioned, and in an action upon the potes, the want of a legal consideration under the statute of frauds being set up as a defence, on the ground of the defect of mutuality in the written contract; the Court below left it to the jury to ipfer from the evidence an actual performance of the agreement, the jury found a verdict for the plaintiff, and the Court below rendered judgment thereon. The judgment was affirmed by this Court.

ERROR to the Circuit Court for the District of Columbia.

This cause was argued by Mr. Jones and Mr. Key, for the plaintiff in error, and by Mr. Caldwell, and Mr. Swann, for the defendant in error.

a They cited Wain v. Warlters, 5 East, 10. Champion v. Plummer, 1 New Rep. 252. Symonds v. Ball, 8 T. R. 15). Saunderson v. Jackson, 2 Bos. & Pul. 238. Bayley and Bo

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Mr. Justice Johnson delivered the opinion of the Weightman

Court. The suit below was instituted on a promis

sory note by the defendant in error. Although it is, Caldwell.

in fact, an indorsed note, and so declared on ; yet it is admitted to have originated in a negociation between the maker and indorser, and whatever defence would be good as against the promisee, is admitted to be maintainable against this indorser, the indorser standing only on the ground of a security or ordinary collateral undertaker to the maker. The defence set up is the statute of frauds, not under the supposition that a promissory note is a contract within the statute, but on the ground that this note was given for a consideration which was void under the statute. The case was this : Caldwell having an interest in a cargo afloat, agrees with Weightman for the sale of it, and Weightman signs the following memorandum, expressive of the terms of their agreement : “ John Weightman agrees to purchase the share or interest of Elias B. Caldwell, in the cargo of the ship Aristides, W. P. Zantzinger, say, $2,522 83, at fifteen per cent. advanced, on said amount, payable at five months from this date, and to give a note or notes for the same, with an approved indorser.

John WEIGHTMAN. “Washington, May 20, 1816."

gert v. Ogdens, 3 Johns. Rep. 399. Roberts on Frauds, 113. 116.

6 They cited Ballard v. Waller, 3 Johns. Cas. 60. Leonard v. Vredenburgh, 8 Johns. Rep. 29. Slingerland v. Morse, 7 Johns. Rep. 463. Ex parte Minet, 14 Ves. 189. Roberts on Frauds, 117. Note, 58. Ib. 121. Stapp v. Lill, 1 Camp. N. P. R. 242.

· In compliance with that agreement, Weightman 1819. gives his note for the sum agreed upon, which is af- Weil

Weightman terwards renewed, and this note taken, on which this

Caldwell. action is instituted. At the trial below, Weightman's counsel moved the Court to instruct the jury, that, " If no bargain or agreement for the sale of the plaintiff's share of the said ship Aristides, nor any note or memorandum in writing, of the same, was ever signed by the plaintiff, binding him in writing to sell his said share to defendant, and if defendant did never actually receive or accept any part of said cargo, and gave nothing in earnest to bind said bargain, or in part payment, and if plaintiff has never made or tendered any written transfer or bargain of his said share to the defendant; but if the entire obligation, reciprocally binding plaintiff to sell said share, was verbal, and formed the sole consideration for the said note, then there is no adequate consideration for the said note, and plaintiff is not entitled to recover upon said note. This instruction the Court refused to give; but instructed the jury, that, if they should be of opinion, from the evidence, that the defendant executed and delivered to the plaintiff the note upon which this action is brought, and that the said note was given in consideration of the purchase of the plaintiff's share or interest in the said cargo of the said ship Aristides, as stated in the aforesaid writing, &c., and that she said cargo was then on the high seas on its passage from France to the United States, and that the same has since arrived, and has never come to the possession of the plaintiff; that the

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Weightman

Caldwell.

Talion

plaintiff had an interest in the said cargo, and that the defendant never demanded of the plaintiff any written assignment of his share of the said cargo, then the statute of frauds is no bar to the plaintiff's recovery, and that the said note is not, by reason of the said statute, void, as being given without consideration.

Taking the charge prayed for, and the charge given, together they appear to make out the following case : The defendant moved the Court to instruct the jury that the note which was he cause of action, was void for want of consideration; inasmuch as it was given in compliance with an agreement signed by one party, and not the other, and which being unattended with any actual delivery of the article sold, was, as he contended, void under the statute of frauds. The Court, without denying the principles laid down by the defendant, submit the whole case to the jury, and instruct them, that upon that evidence they were at liberty to infer an actual execution of the agreement by both parties, and thus take the case entirely out of the operation of the statute of frauds. Under this construction of the bill of exceptions, for it must, like all other instruments, be the subject of construction, we are decidedly of opinion, that the judgment below must be affirmed. Whether right or wrong, the defendant had all the benefit of the law that his case admitted of, and, therefore, this Court is not called upon to express a judgment on its correctness. The Court below were clearly right in submitting the question of execution to the jury. If there had ever been a doubt

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entertained on this point it is now removed by numerous adjudications.

Judgment affirmed.

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a The 17th section of the statute of frauds, 29 Car. II. c. 3. which has been incorporated into the laws of most of the States, provides, “that no contract for the sale of any goods, wares, and merchandizes, for the price of 10 pounds or upwards, shall be good, except the buyer shall accept part of the goods, and actually receive the snme, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain be made and signed by the parties to be charged by the contract, or their agents thereunto lawfully authorized.”

[That no contract for the sale, &c.] It was formerly supposed, that executory contracts, (that is, where time is given for the delivery of the goods,) were not within this section of the statute ; but that it only related to executed contracts, or where the goods were to be delivered immediately after the sale . Towers v. Osborne, Str. 506. Clayton v. Andrews, 4 Burr. 2101. But this distinction has been since exploded ; and it is now settled, that where the goods bargained for are complete, and existing in solido, ready for delivery at the time of the contract, it is within the statute ; but that where they are not complete and ready for delivery, but are either to be made, or work and labour is required to be done, and materials found, in order to put them into the state in which they are contracted to be sold, such a contract is out of the statute, and need not be in writing. Rondeau v. Wyatt, 2 H. Bl. 63. Bennett v. Hull, 10 Johns. Rep. 364. Groves v. Duck, 3 Maule f. Selw. 178. Cooper v. Elston, 7 T. R. 14.

[Of any goods, wares, and merchandizes, &-c.] Quære, whether shares of a company or public stock, are comprehended under the words “ goods, wares, and merchandizes.” Pickering v. Appleby, Com. R. 354. Mussell v. Cooke, Prec. in Chan. 533. Rob. on Frauds, 185. Colt v. Netterville, 2 P. Wins. 307. This point appears never to have been decided. Vol. IV.

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