
    Bailey against Johnson.
    £ wníten c°n‘ tract deposited by the parties ™thaa state, being
    out of the jurisdiction of the court, may be proved by the depositary on commission, and need not be produced in court.
    An order was to deliver goods to B. In pleading, it was averred that the goods were to be delivered to B. or order; held, no variance, the words “ or order” not being material, nor set forth as matter describing the instrument.
    A written contract, not sealed, may be varied by the parties, on a valid consideration, by parol  ; and the supplemental agreement may be enforced in connection with the original one; the whole as a single agreement. 
    
    An order drawn on a depositary of goods by the owner, to deliver them to a third person, and accepted by the depositary, is a sale of goods according to the terms of the order, by th drawer to the deliveree.
    An order on a depositary to deliver goods, is valid without saying for value received, or proving value received, especially if accepted by the drawee. It will be intended that the deliveree is beneficially interested, and not a mere agent of the drawer.
    Where there is doubt as to the terms of an order in the hands of the party sought to be charged by it, and he refuses to produce it, putting his antagonist to. parol proof, the presumption shall be against him, that the order is in the terms insisted on by his antagonist.
    
      Assumpsit : tried at the Erie circuit, in September, 1826, ' r before BlRDSALL, C. Judge.
    The declaration was on a special contract.
    
      UTICA,
    August, 1828.
    A parol acceptance of an order from the owner of goods, by his depositary, is valid and binding on the depositary, according to the terms of the" order.
    An endorsement by a deliveree, and a delivery of an order for goods, with intent to assign it, operates as a. valid assignment.
    An endorsement and delivery, with intent to assign, by the deliveree, of an order for goods, drawn in his favor by the owner on his depositary, who accepts the order, is a.sale of the goods, and such a sale is a good consideration for a promise.
    *At the trial it appeared in evidence, that on the 17th ol june^ |g20; the plaintiff and defendant entered into a writ-7 . ten contract, which was deposited m the hands of A. W. Walworth, of the state of Ohio, who was examined as a witness under a commission, and set out, in his answer, a copy of the contract, retaining the original. By this contract, Bailey (the plaintiff) agreed to deliver at Black Rock, in the month of August then next, 200 barrels of salt, for which Johnson (the defendant) agreed to deliver at Cleveland, in the state of Ohio, to the plaintiff, 33 barrels of pork, and pay 304 dollars; the pork to be delivered and money paid as fast as the plaintiff delivered the salt.
    The defendant objected that the original contract should be produced ; but the objection was overruled.
    Amasa Bailey testified, that in September, 1820, he came to Black Rock, where the plaintiff lay sick, and took from his pocket book an order drawn by Nathaniel Woodward on Sill, Thompson & Co. in favor of the plaintiff, for 169 barrels of salt, to be delivered on the payment of $300 by the plaintiff to them.
    The declaration was, that the salt was to be delivered to the plaintiff or order.
    The witness farther testified, that he took the order and went to the store of Sill, Thompson & Co. at Black Rock, and presented it to Nathaniel Sill, one of the firm, who answered, that they had the quantity of salt belonging to Woodward ; that the order was good, and the salt would be delivered at any time on the payment of the 300 dollars. The plaintiff shortly afterwards returned to his residence at Cleveland in Ohio, and soqn after his arrival there, the defendant called on him, and it was then agreed between them that the plaintiff should transfer the order to the defendant, and that the defendant should go to Black Rock, and pay Sill, Thompson & Co. the 300 dollars, receive the salt, and pay the plaintiff in pork at Cleveland, according to the terms of the original agreement, with the exception that he was to pay towards the 169 barrels the $300 expressed in the order, to Sill, Thompson & Co. The plain-, tiff then endorsed the order, and delivered it to the defendant, and stated to him that the $300 *must be paid to Sill, Thompson & Co. soon, otherwise he could not let him have the order ; whereupon the defendant agreed that he would go immediately to Black Rock, and pay the money, and, as soon as he could return to Cleveland he would deliver the pork. The salt was then considered by the parties as worth 4 dollars per barrel at Black Rock. This agreement was made between the 1st and 20th of October, 1820.
    The defendant objécted that proof of a parol acceptance of the order was insufficient. The objection was overruled.
    The defendant proved by N. Sill, one of the firm of Sill, Thompson & Co. that in July, 1820, Nathaniel Woodward, jun. delivered them in store 169 barrels of salt; that it remained there, until the winter following, when a part of it was either sold or went in kind to pay transportation and storage to the company, and the rest was delivered to Nathaniel Woodward, jun. The witness stated that he knew no such person as Nathaniel Woodward, other than what he learned from entries on his books He had no recollection that the defendant ever called for the salt, or that the order was presented by the witness, Bailey.
    The defendant’s counsel objected that the order had not been accepted so as to bind the drawees to deliver to the defendant, or protect them from a demand by Woodward;
    That the order was not endorsed so as to. give the defendant a right to enforce it;
    That it did not appear to have been drawn in favor of the plaintiff for value received by Woodward ; the plaintiff, therefore, had no interest in the salt, which remained to Woodward, who took it away ;
    That the defendant had never received any of the salt, nor did it appear but that the plaintiff was the mere agent of Woodward, having no interest.
    The judge overruled these objections, and charged the jury that the order passed a subsisting interest in the salt to the plaintiff, subject to the charges of the forwarder;
    That, especially after presentment, the drawees declaring it good, it imported value in itself;
    *That the parol assignment and delivery passed the plaintiff’s interest, and was a good consideration for the defendant’s promise to pay;
    That Sill’s acceptance bound him to hold the salt, subject to the order, at least, for a reasonable time ; and
    That the defendant, by the assignment and delivery, acquired a right to the salt, which he might enforce against the drawees, either in his own name or the plaintiff’s;
    That it was immaterial whether the order was drawn for value received or not; but if that were important, the presumption was against the defendant, who held the order, and should produce it;
    That, though the salt went to Woodward, for aught that appeared, this was by consent of the defendant, who might have received from Woodward all his (the defendant’s) interest was worth;
    That the order remained unaccounted for.
    Verdict for.the plaintiff of $376.
    
      J. L. Wendell, for the defendant now moved for a new trial, on the points insisted on at the circuit.
    S. A. Foot, contra.
    
      
       Otherwise, if the original contract is within the statute of frauds. Blood v. Goodrich, 9 Wen. 68.
    
    
      
       See Mead v. Degolyer, 16 Wen. 632.
    
   Curia, per Woodworth, J.

As to the written contract made in June, 1820, it appears to me to have been substantially abandoned, and' another substituted in October then following: for it will be perceived that the last contract is variant from the first, and inconsistent with it The first is, that the plaintiff should deliver 200 barrels of salt, and the defendant should pay 33 barrels of pork, and 804 dollars ; by the last, the plaintiff agrees to assign,.and does assign, an order on Sill, Thompson & Co. for 169 barrels of salt, the defendant to pay them 300 dollars, and pay the plaintiff in pork at Cleveland, according to the terms of the original agreement, This was matter of reference merely, to specify the manner of payment for the salt.

But, whether the written agreement was rescinded or not, it was competent for the parties to make another contract respecting a different quantity of salt to be transferred and ^delivered in a manner variant from the first. The plaintiff rests his. action on this last contract, and, as it appears to me is entitled to recover. He held an order from Nathaniel Woodward for 169 barrels of salt. Whether the words value received” were contained in it, or the words or order” inserted is immaterial. If they were material, the defendant, to whom the order was delivered, and who has given no evidence as to the disposition of it, ought to have produced the paper, in order to ascertain whether those words were inserted or not. But it is enough that the plaintiff held an order for the delivery of the salt. In the absence of all proof, the court are not authorized to presume the plaintiff was the agent of the drawer, but will intend that he was the person to be benefitted by the delivery ; and particularly after the order had been presented and verbally accepted. If the plaintiff was entitled to receive the salt to his own use, the authority to direct the delivery to another was incident and inseparable, and need not be expressed. What then, was the intention of the parties ? Undoubtedly this : the defendant was willing to take a transfer of the order, or, in other words, instead of the plaintiff actually going to Black Rock, and making a personal delivery, the defendant was satisfied that the same thing would be accomplished by the assignment of an order, the validity of which could not well be doubted, it having previously been presented to Sill, Thompson & Co. and declared by one of that firm, to be good. The defendant was willing to take this, and, in consideration, bind himself to pay the plaintiff according to their contract. whs a good Consideratibh, and legally Binding; For aught that appears, the defendant might have received the a'alt-, had he applied at ahy time Within four months after the contract. All that he proves bn this point is, that in the Winter following, the salt Was delivered or accounted fdr to Nathaniel Woodward. By what authority, or under what pretence he received the salt, we are left to cofijectúré. Hé may have obtained the possession rightfully in various Ways, Ñon constat-, but that he had acquired the defendant’s interest by purchase. Bui admitting that he had not, the fact billy proves that Sill, Thompson & Co. etr'ed in considering him *the owner, after the order had been presented to them By Bailey, and they had admitted its validity; By the assignment of the Order for the salt, prima fade the defendant must be considered the Owner; arid, on the facts appearing in this case, I perceive no objection to the right of the defendant to call on Sill, Thompson & Có. by action, oh their refusal tó deliver the salt. If, indeed, the plaintiff was drily the agent of Nathaniel Woodward, rind riot the 'rightful dWrier, the transfer Of the Order, which amounted to a Sale tif the pfopérty By him, was a fraud, and the bonsideratibh fdr Which the defendant contracted failed ; But as riothitig of this kind appears, and the contrary is to be prestimed, I thirik there is ho sufficient ground to set aside the verdict, and consequently the rridtiori for a new trial is denied.

híéW trial dfeñíéct.  