U.S. Supreme Court Weightman v. Caldwell, 17 U.S. 4 Wheat. 85 85 (1819)
Weightman v. Caldwell
17 U.S. (4 Wheat.) 85
ERROR TO THE CIRCUIT COURT
FOR THE DISTRICT OF COLUMBIA
E.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 percent advanced 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 this agreement, J.W. gave his notes for the sum mentioned, and in an action upon the notes, the want of a legal consideration under the statute of frauds being set up as a defense on the on the ground of the defect of mutuality in the written contract, the court below left it to the jury to infer 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.
JOHNSON, JUSTICE, delivered the opinion of the Court.
The suit below was instituted on a promissory note by the defendant in error. Although it is in fact an endorsed note and so declared on, yet it is admitted to have originated in a negotiation between the maker and endorser, and whatever defense would be good as against the promisee is admitted to be maintainable against this endorser, the endorser standing only on the ground of a security or ordinary collateral undertaker to the maker. The defense 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 percent 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."
"Washington, May 20, 1816. "
In compliance with that agreement, Weightman gives his note for the sum agreed upon, which is afterwards renewed, and this note taken, on which this 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 it 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 the 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
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 the 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, submitted the whole case to the jury and instructed it that upon that evidence it was 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
entertained on this point, it is now removed by numerous adjudications.