Joseph Story

“ No vessel has ever been designated by George D'Wolf, on board of which the defendant has been required, by George D' Wolf, to ship the sugar; and until such designation, no right of action will accrue in favor of any person against the defendant. The letter of George D'Wolf dated December 27th, 1825, and addressed to A. E. Belknap, (relied upon by the counsel for the plaintiffs to prove an authority in Belknap to designate a vessel as the agent of George D'Wolf,) is insufficient for that purpose. It gives Belknap no such authority ”

“ The words 'for my account,' contained in the letter prove that the agreement was not made with nor for the plaintiffs, and they have no authority for bringing an action in their own names, for a violation of the contract.
This position may be supported by an analogy drawn from bills of lading. A bill of lading, expressed in the ordinary form, transfers the property absolutely to the consignee, and he becomes, in legal contemplation, the owner of the goods. ”

“ 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. ”

“ His testimony is in writing, and will be submitted to the jury when they withdraw to make up their verdict. They will read and judge for themselves. I understood 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 ”

“ Admitting the law to the now settled by the English cases, as we say it ought not to be, we contend, that if the general proposition which was first laid down by Lord Ellenborough in the case of Wain vs. Warlters, can be maintained, still our case cannot in any view of it be brought within the principle of that case. ”

“ If the testimony offered in evidence by the plaintiff, be insufficient, in point of law, to sustain his declaration, the defendant has a right to call upon the Court to nonsuit the plaintiff. Swift vs. Livingston, 2 John. Cases, 112. Clements vs. Benjamin, 12 John. 298. Pratt vs. Hull, 13 John. 298. Crookshank vs. Gray, 20 John. 350.
2. The consideration upon which the defendant's promise was made, is entirely different from that set forth in the declaration, and this is a fatal variance. (King vs. Robinson, Cro. Eliz. 79. Com. Dig. vol. 1, 334, title, action upon the case upon assumpsit.) ”

“ Lamb, Fell. on Guar. Saunders vs. Wakefield, 3 B. & Ald. 595. Jenkins vs. Reynold, B. & Bing. p. 14. Jean vs. Brink, 3 John. 211. Leonard vs. Vredenburg, 8 John. 27. Stewart vs. M'Givin, 1 Cow. 99. Sloan vs. Wilson, 4 Har. & John. 322. Stephens, Ramsay & Co. vs. Winn, 2 Nott & M'Cord 372.
Mr. Webster and Mr. King for the defendants.
1. As this cause is brought here by a writ of error, we apprehend that the Court will not go into an examination of the weight of the testimony. The verdict of the jury is conclusive, that the defendant made the agreement stated in the plaintiffs' declaration. ”