
    Henry J. Baker, et al. plaintiffs, vs. Bradish Johnson et al. defendants.
    1. On the 9th of July, 1862, the defendants agreed to sell the plaintiffs 250 barrels of alcohol, of a designated strength, to be delivered “ under the tax law,” from the 20th to the 31st of August, 1862, duty paid, at forty-five cents a gallon. Parol evidence was adduced to show that the parties understood the. meaning of the words “ under the tax law,” in the contract, to be, that the alcohol was to be manufactured Under the tax law then in existence, and which by its terms, was to go into effect oh the 1st of August; and that the alcohol would be deliverable after the law would take effect, and thereby become duty free. By a provision in stich tax law, the Secretary of the Treasury was authorized to suspend its operation; and on the 30th of July he did suspend it until September 1; the effect of which, suspension was to subject alcohol manufactured before the laW went into operation to the duty previously imposed upon that article.
    
      Held that this was not an act of the law which rendered performance impossible, so as to excuse the sellers. That it was not impossible to deliver alcohol of the quantity and quality mentioned in the' contract, whether manufactured under the law, or before the law was in operation; and that- the sellers must abide by their agreement, and either do the act, or pay damages. (Robertson, Ch. J. dissented.
    2. The performance of a contract is excused when it has become impossible by the act of God, or of the law. in all other cases of failure to perform, from whatsoever cause, the defaulting party is answerable in damages.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 29, 1864;
    decided December 31, 1864.
    The complaint in this action sets forth a contract between the plaintiffs and defendants, dated July 19, 1862, whereby the latter sold the former two hundred and fifty barrels of alcohol, in prime western barrels of four iron hoops, to be delivered between August 20,1862, and August 31, 1862, on board vessel at 45 cents a gallon, cost. That the plaintiffs, on the 30th of August, demanded delivery of the alcohol on board the ship Adriatic, and tendered the purchase money— that the defendants refused—and demand judgment for damages in difference of value, The answer sets up that the agreement was to sell and deliver the quantity of alcohol as stated in the complaint “on board Vessel under the tax law, from the 20th of August to the 31st of August, 1862, duty paid." That prior to such sale', and on July 1, 1862, an act of congress was framed to provide internal revenue, which was commonly known as the tax law, and was so known by the plaintiffs and defendants in the making of the said contract; that when said contract was made, said law was to go into operation on the first day of August, 1862, but that subsequently, and on the 30th day of July, the secretary of the treasury, in pursuance of authority duly conferred upon him, postponed the period when said law should go into effect, until the first day of September, 1862. That alcohol under the tax law, was a distinct árticle of common use, and its price different from alcohol not under the same lato; that the same when sold for export was exempt from duty under said law and such exemption was part of the consideration on the said contract of sale. That since the said tax law went into operation, the defendants have always been ready and willing to comply with the said contract, &c.
    The action was heard on the 8th of April, 1864, before Justice Garvin, and a jury.
    The plaintiff’s counsel offered in evidence a contract between the parties as follows :
    “Sold H. J."Baker & Co.,
    Of Johnson & Lazarus, two hundred and fifty barrels alcohol, usual 95%., 88%., new standard. 4 iron, hoops— prime western barrels. Delivered on board vessel, under tax law, from 20th August to 31st August, 1862, duty paid, at 45c. cash. Broker for seller.
    W. W. Van Boskerck,
    Broker, 81 Wall street.
    Hew York, July 19, 1862.”
    At the close of the plaintiffs’ testimony, and again at the close of the defendants’ evidence, the defendants’ counsel moved to dismiss the complaint upon the grounds: Eirst. That there was a fatal variation between the contract as proved and the contract stated in the complaint, the action not having been brought for the non-delivery of alcohol under the tax law, but for the non-delivery of an article different from that specified in the contract, as proved in evidence. Also: That the action of the secretary of the treasury in postponing from the 1st of August to the 1st of September, 1862, the operation of the act of congress of July 1st, 1862, known as the tax law, had made impossible, and so discharged the performance by the defendants of the contract. The motion was denied, and the defendants excepted.
    The judge directed a verdict to be taken for the plaintiffs; and they found a verdict accordingly, for $2559.38; and the exceptions to his rulings made during the progress of the trial were ordered to he heard in the first instance at the general' term of this court; judgment in the meantime to be suspended.
    
      John E. Parsons, for the plaintiffs.
    I. The alcohol was bought' for exportation. “ Delivered on board vessel.” The act of July 1,1862, imposes no tax upon exported spirits. And therefore never had any application to the alcohol in question. “Under the tax law,” in the contract, merely meant subject to such provisions of the act then just passed, as might apply; but none of its provisions did apply ; and so the words “ duty paid,” meaning such duty as the act should impose, to be paid by the seller, had no operation, as the act imposed no duty. The act does permit the manufacturer to pay the duty, and in case of exportation recover it back; a useless ceremony, rarely performed, and resulting precisely as if no duty were paid. These words “ under the tax law,” and “ duty paid,” the broker who made the contract testified on the defendants' examination were merely intended to describe alcohol for export. Both the act and the action of the secretary of the treasury left this alcohol (for exportation) precisely as if no such act had been passed, or action taken. The substitution of September 1, in place of Agust 1, 1862, in the act, therefore, not only did not render impossible the performance of the contract, but did not to the slightest degree affect it or the parties to it.
    II. The act was passed July 1, 1862, the joint resolution of congress under which the secretary of the treasury substituted September 1 for August 1, 1862, was passed July 17, 1862. The contract was made on July 19, 1862, with direct reference to and mention of the act, and therefore with reference to the possibility of the very change made by the secretary of the treasury. Had this change, as was not the case, in any way operated to the benefit or injury of either party, it was in view of such a possible change that the parties contracted. Either, wishing to guard aginst the effect of such a change, might have specially provided against it; without such provision, the change could not affect the contract. “If a party-contract to perform any thing which is possible when the contract is made, but afterwards becomes impossible, he is liable for damages for non-performance. If, by his own contract, a man create a duty or charge upon himself, he is bound thereby, notwithstanding the occurrence of any contingency, because if he had chosen, he might have provided against it by the stipulations of his contract.” (Story on Cont. § 975.) “ It is not a valid excuse for the non-performance of an agreement to deliver goods of a certain quality, that goods of that quality were not to be had at that particular season when the contract was to be executed.” (Chitty on Cont. 630, note. Gilpins v. Consequa, 1 Peters’ C. C. R. 91. Yoqua v. Nixon, Id. 221.)
    III. Again, assuming, as was not the case, that the postponement from August 1 to September 1, 1862, did operate for or against either party to the contract, still it-did not render impossible, and therefore did not excuse performance by the defendants. The contract was for the sale of alcohol of a designated strength. Whatever the operation of the act, or time from which it should take effect, the contract would have been performed by the delivery of the same identical article—250 barrels of alcohol of the intended strength, There is no pretense the alcohol could not be delivered; and therefore no legal excuse for its non-delivery, even though a change in the act might have made the delivery more advantgeous to the plaintiffs. The answer avers that the defendants were willing to deliver after September 1, 1862, subsequent to the time fixed by the contract, and so had the alcohol to deliver at the time. Nothing will excuse performance except where performance is rendered impossible by act of the law, or of God, or of the other party. (People v. Manning, 8 Cowen, 297. Carpenter v. Stevens, 12 Wend. 589. People v. Bartlett, 3 Hill, 570. Fahey v. North, 19 Barb. 341. Wolfe v. Howes, 24 id. 174, 666. Where' the defendant covenated to obtain a patent right in England for the plaintiff’s benefit ’ held, that the fact, that under the British statute this could not be done, did not excuse him, it not being shown that it could not be effected by act of parliament. (Beebe v. Johnson, 19 Wend. 500.) In Jones v. Judd, (4 Comst. 411,) the legislature by act of March 29, 1842, put an end to the work on the canal, the completion of which by the contract between the parties was a condition precedent to payment to the plaintiff; held, that the legislature prevented the performance of the condition, and so that the plaintiff could recover on a quantum meruit.
    
    
      A. W. Bradford, for the defendants.
    I, The contract, described in the complaint, and the contract proved, are entirely different as to the subject matternamely, the article agreed to be sold. ' In the complaint it is stated simply as “alcohol” “to be delivered” “on board vessel.” In the contract it is described as “ alcohol ” to be “ delivered on board vessel under the tax law.” Alcohol under the tax law, at the date of the contract, was a distinct article from alcohol not under the. tax law, or alcohol in general. The difference consisted in this—that “alcohol,” simply, or alcohol not under the tax law, was alcohol then existing, and which the new tax law did not profess to tax; while alcohol under the tax law must necessarily be such as should be manufactured after that law went into operation, for the law only taxed alcohol manufactured after it went into effect. The first article was exempt from all duty; the second was chargeable with duty when intended for home consumption, but exempt from all duty when exported. The difference was substantial.
    1. The duty was to be levied “ on all spirits that may be distilled and sold, or reserved for consumption or sale,” “on and after the first day of August, 1862.” (Tax Law, § 47.)
    2. By the act there was no duty on spirits not distilled under the law. If shipped to another part of the United States, the duties were to be paid there. (Id. § 46.)
    3. If exported, no duties were chargeable. (Id. § 47.)
    4. At the time of the contract, therefore, alcohol then existing was not the subject of the contract, but the contract related solely to an article which was to be manufactured under that law, which was to he delivered for export, and which was to he duty free.
    It follows that there was a fatal variance between the contract stated in fhe complaint and that given in evidence, and the plaintiff having failed to move for an amendment of the complaint, the motion for a nonsuit should have been granted.
    II. The parol evidence shows that the articles in question were entirely dissimilar.
    1. The operation of the tax law upon alcohol distilled under it, and designed for domestic use, would be to raise the value by the addition of the new duty. If alcohol could be manufactured at forty-five cents a gallon, the price would be raised by the addition of the duty, which was to be forty cents a gallon, so that the article, if intended for home consumption, would cost eighty-five. This would not be the case with the article intended for export, for that would be free of duty, and the price would be regulated by the single element of its cost.
    2. As spirits distilled under the tax law would be worth the cost and the duty, if intended for home consumption ; and as spirits manufactured before the tax law went into operation would be free of duty, though intended for home consumption, the price of the latter article in July, 1862, rapidly rose, in View of the law then shortly going into operation. So that on the 19th of July, 1862, when this contract was made, not only were there two distinct articles of commerce recognized in the market, viz. alcohol made or to be made before the tax law went into effect, and alcohol to be made after it went into effect, but these articles were distinguished by a substantial difference in price.
    3. These facts appear very clearly by the evidence. In a physical sense there was no difference in the article, but the distinction rested upon the time of manufacture, and the purpose for which the article was to be used, whether for export or domestic use. This difference was indicated in the price, and in the terms “ long price or short price” The long price included the tax, and was meant for home consumption. The short price was the long price, less the duty.
    
      4. The plaintiffs were aware of the distinction. The difference in price the day of the contract was forty-five cents and sixty cents.
    5. The words “ under the tax law,” had a definite meaning. “ The parties to the sale understood the matter perfectly, that it was to be manufactured under the law.” The duty was forty cents, and to pay the duty was to pay nearly the whole price of the goods.
    III. The parol evidence establishing clearly that there was a variance between the contract as alleged and the contract as proved and explained, a verdict for the defendants should have been directed.
    IV. The contract was executory, being an agreement to sell alcohol to be manufactured under the tax law, and to be exported. By the terms it was to be “ delivered on board vessel, under the tax law, from 20th to 31st August, 1862, duty paid. It was provided by the tax law that its operation might be suspended by an order of the secretary of the treasury. It was so suspended to the 1st of September., 1862. The performance of the contract, therefore, from 20th to 31st of August became impossible, and was discharged. There was not, and could not be any such article, and there could be no delivery.
    V. Performance of a contract is excused when rendered impossible by law. (2 Pars, on Cont. 186.) “It is incumbent upon the obligor to procure the acts to be done, unless at the time of entering into the bond there was an impossibility of doing the act, or the doing of it had since become impossible by the act of God, or of the law.’’ (Mounsey v. Drake, 10 John. 28.) “ The performance of the required condition became impossible by the act of the law, &c.” (Jones v. Judd, 4 Comst. 413. Coke’s Litt. 206 b. People v. Manning, 8 Cowen, 297. Beebe v. Johnson, 19 Wend. 500. Wolfe v. Howes, 20 N. Y. Rep. 197. Broom’s Legal Maxims, vol. 34. Law. Lib. N. S. p. 112, 117, 120.)
    VI. If it be said that the contract could have been subsequently performed, the answer is that the plaintiffs did not put themselves on that ground. They demanded performance on the day when it was impossible, and by their action insist on strict performance. It was their interest not to urge subse-. quent performance if the article was to be used for home consumption ; for the price (forty-five cents) with forty cents duty added, would have made the cost eighty-five cents, when it could be bought in market for sixty-eight.
    YII. The designation of the article which was the subject of the contract, and the meaning which the parties attached to it, were the subject of parol proof. (Den v. Cubberly, 7 Halst. 308. Haven v. Brown, 7 Greenl. 421. Crawford v. Jarret, 2 Leigh, 630. Boardman v. Reed, 6 Peters, 328.) “ Where the terms used in a contract are of dubious meaning, the custom and usage of the country, or of any particular class of persons, as merchants conversant with the term,, to use it in a particular sense, is evidence that the' parties intended so to use it.” (Best on Presumptions, 116. Law. Lib. new series, vol. 31.) Proof of usage is admitted either to interpret the meaning of the language of a contract, or to ascertain the nature and extent of a contract, in the absence of express stipulations where the meaning is equivocal or obscure. (1 Greenl. Ev. 1, 412, § 292. 1 Phil, on Ev. p. 738. 2 Sumn. 569, per Story, J.) Parol evidence was admitted to show the meaning of the term “ cotton in bales.” (Taylor v. Briggs, 2 C. & P. 525. See Dana v. Fiedler, 2 Kern. 40, Brown v. Brooks, 25 Penn. Stnte R. 210.) This class of proof is constantly resorted to in the application of the tariff law to articles of merchandise or manufacture. (Elliott v. Swartwout, 10 Peters, 137.)
   By the Court,

Monell, J.

At the time this contract was made, there were in the market two prices for alcohol; the “ short price,” being alcohol purchased for exportation, and the “long price,” purchased for domestic consumption. Under the act of congress of July 1st, 1862, alcohol sold for exportation, being entitled to a drawback of duties, was in effect duty free.

The contract between the parties was a sale and purchase of 250 barrels of alcohol, to be deliverer! on board of vessel under the tax law, from the 20fch to the 31st of August, 1862, duty paid. The evidence shows that the parties understood the meaning of the words “ under the tax law” in the contract to be, that the alcohol was to be manufactured under the tax law then in existence, and which by its terms was to go into effect on the 1st of August. And they also understood that the words had reference to the “short price” article.

By a provision of the tax law the secretary of the treasury was authorized to suspend its operation. He did suspend it until the 1st of September. The effect of such suspension was to subject alcohol manufactured before the law went into operation to the duty imposed upon that article; in other words, alcohol not manufactured under the law.

I have no doubt, from the evidence, that both parties contemplated the influence.of the tax law upon their contract, and that the price agreed upon was regulated by the belief that the alcohol would be deliverable after the law would take effect, and would therefore be duty free. The suspension of the operation of the law to a period subsequent to the time of delivery, rendered it impossible to perform the contract without subjecting the seller to severe loss.

But it is urged that it was impossible to deliver at all, and that the defendants were thereby excused from performance. The performance of a contract is excused, when it has become impossible by the act of Grod, or of the law. In all other cases of failure to perforrh, from whatever cause, the defaulting party is amenable in damages.

One of the defendant’s witnesses says there were two different kinds of alcohol; the short price and the long price ; but he did not, mean, I think, that there was any physical difference, in quality, but a difference merely in the price of the same article, regulated by its being purchased for exportation or for home consumption. Alcohol of a designated quality is the same, "whether “long price” or “short price and these designations, employed in trade, to denote articles of a kind designed for exportation, and others intended for domestic use, do not change or alter the article in its physical nature.

- The cases where the act of the law excuses performance, or those where the law renders it impossible to perform ; as where a contract is made with the state .to do work on the canal, arid the work is suspended by the act of the legislature, full performance is excused, and a recovery may be had upon the quantum meruit. (Jones v. Judd, 4, Comst. 411.) But I am not aware of any case, where there was no physical impossibility to perform, that it has been held that the party was excused. If the defendants had been prevented from delivering, or if the delivery had become illegal by the act of the law, it would furnish an excuse. In this case, however, the act of the secretary of the treasury in suspending, the operation of the tax law, neither prevented the delivery of the alcohol, nor rendered its delivery illegal. And I can see no reason for not delivering, except the pecuniary loss to the defendants.

As I understand the argument of the defendants' counsel, he claims that inasmuch as-they agreed to deliver alcohol to be manufactured under the law, and the law having been postponed to a period beyond the stipulated time of delivery, it was impossible to deliver alcohol manufactured under the law. I cannot appreciate the force of the argument. The contract was made after the passage of the excise act, when its provisions were known to the contracting parties. The act was to take effect on the 1st of August, Unless its operations were suspended by the-secretary of the treasury. It was in the power of the defendants to have provided, by proper stipulations, for the contingency of a suspension of the law even for an indefinite period, ánd to have relieved themselves from liability if the contingency happened.- The possibility of a suspension of the law should have been foreseen and provided1 against. The power or authority to suspend was in the act and known to the defendants when they entered into the engagement.

The defendants entered into their contract without any qualification or exception, and it seems to me they must abide, by it and either do the act or pay damages. It was not impossible to deliver alcohol of the quantity and quality mentioned in the contract; and whether manufactured under the law, (by which I understand manufactured after the tax law took effect,) which was for the advantage of the sellers, or manufactured before the law was in operation, the quantity and quality of the alcohol which the defendants had sold, could have been delivered.

The plain English of the contract is, we agree to sell you alcohol, which we intend to manufacture after the 1st of August, when we expect the new tax law will go into operation, which alcohol we will deliver between the 20th and 31st of August. The tax law did not go into effect as was supposed. I cannot, see any difficulty in the way of the defendants manufacturing the alcohol after the first of August and delivering in fulfillment of their contract. That it could not be manufactured under the law was not such a legal impossibility as would excuse performance. Suppose goods are sold to arrive, duty to be paid by the seller, would a subsequent increase of duty excuse, performance ? Or, suppose goods are sold to be delivered on a given day under the present excise law, would an intermediate increase of the tax affect the obligation of the contract ? I think in neither case would performance be excused, for the reason that performance was possible.

I think the exceptions should be overruled and a judgment ordered for the plaintiffs upon the verdict.

Robertson, Ch. J.

(dissenting.) If the contract in question is to be construed as being merely for the delivery by the defendants, between certain days in August following, of a certain quantity of alcohol, of a certain degree of strength, then' liability may be conceded. Nor would they escape such liability, if such alcohol was required to be merely such as would be subjected to the duty imposed by the United States internal revenue act of July, 1862, in case it should take effect as originally prescribed therein, on the 1st of August, 1862. Because, in neither case, was there any impossibility of delivering such alcohol. The difficulty arises from such revenue act not being in operation at the time of making such contract, and the time when it was to go into effect being contingent, in fact dependent upon the action of the secretary of the treasury, under the authority given to him by a joint resolution of congress, to postpone such time. Both parties were chargeable with knowledge of the existence of that authority, and the legal effect of its exercise upon the original act; because such-joint resolution was passed two days before such contract was made. And if such contract was made, either in terms or by intendment of law, in reference to the possible shifting of the time when such revenue law was to take effect by the action of the secretary of the treasury under such resolution, it became wholly void and inoperative: because it undertook to furnish in August, what could not have any existence until on or" after the 1st of September.

It may be conceded for the present, for the sake of argument,if no authority had been given, before making the contract in question, to the secretary of the treasury to postpone the time when the revenue act in question should take effect, but after the making of such contract, congress had, by a legislative act, postponed such time, that the defendants .would still have been liable to deliver at the time appointed, the same kind and quantity of alcohol, which would, if the statute had not been so modified, been deliverable under such contract. In other words, that the defendants would take all the risk, and the plaintiff none, in such case, of a changé by future, unforeseen and unexpected events of the value of the article, or its subjection to duties. Tet the principle applicable in such a case would not control the obligation of a contract made in reference to a law whose time of taking effect was then uncertain, for the delivery of articles to be subject to such law, at a time when it might not be in operation. The authority so to-be exercised by the secretary of the treasury, was not an ordinary authority, belonging to him by virtue of his office; but derived exclusively from the joint resolution, which might have selected any other mode of determining the time the act should take effect. Congress could not delegate to him legislative power; the constitution does not provide for such delegation. Its exercise has the same effect as the assent of corporations or inhabitants of a locality to a law or action under it in order to make it binding, (Corning v. Greene, 23 Barb. 33 ; Bank of Rome v. Village of Rome, 18 N. Y. Rep. 38 ; Grant v. Courter, 24 Barb. 232 ; Starin v. Town of Genoa, 23 N. Y. Rep. 439 ; Gould v. Town of Sterling, Id. 456 ;) and its constitutionality must depend upon the same principle. It is equivalent to authorizing the secretary to license any and every distiller to manufacture alcohol without subjecting it to duty up to a certain time, after subjecting all alcohol to duty. The postponement, therefore, by such secretary of the operation of the law is not to be considered in the light of a subsequent legislative act, prohibiting the performance of acts previously agreed to be done, but as the determination of a contingency forming part of the law itself, and therefore a possibility within the contemplation of both parties when the contract was made.

The article required to be delivered by such contract was not only to be of a certain kind and strength, but to be delivered under the tax lato, which is conceded to be the act of congress in question, subject, of course, to the effect of the joint resolution, and .with duty paid. A subjection to duties under such act, was as essential a qualification of the article to be delivered as its quality or quantity. It clearly was as material, since the effect of the law, when in operation upon the price, would be, and proved to be, as great as any other element of its value. There is, therefore, no more ground for disregarding that qualification than any other. While, therefore, the defendants cannot claim to be discharged upon the ground that the action of the secretary of the treasury made impossible that which before was absolutely possible, they may claim that the contemplated contingency, which, if it had happened in a different way, might have enabled them to perform their contract, had, by happening the way it did, rendered it impossible. It is very plain that if, by the revenue act itself, or the action of the secretary of the treasury, before the contract was made, the law was definitively not to take effect until the first of September, the defendants would have undertaken to perform an impossibility, to wit, to deliver in August under a tax law, what could not be created so as to come under it until September. It was uncertain, until the action of the secretary of the treasury, whether, under the contract, the defendants had undertaken a possibility or an impossibility, which the plaintiffs were bound to know.. And they were subject to the rule of law whieh makes a contract to perform an impossibility inoperative and void. Of course, difficulty, however great, unless unsurmountable, would not be sufficient.

The broker’s memorandum itself is loosely drawn,.and needs a reference to extrinsic facts and evidence by both parties, to render it certain, or interpret it. Thus the defendants agree thereby to deliver so many barrels of alcohol; A barrel of liquid measure is thirty-one gallons and a half; whalers evidence was admitted, (perhaps improperly—see Many v. Beekman Iron Co., 9 Paige, 188,) to prove that the contents of an actual barrel used to contain alcohol varied from forty to forty-four gallons. . The words and figures, At 45 cts. cash,” do not indicate the quantity sold for that price. “ Under the tax law,” does not clearly designate what law was meant. On board .vessel,” would not necessarily mean for export. With the-assistance, however, of the testimony of the broker who negotiated the sale, (Van Boskerclc,) and another one, (Coolidge,) some definiteness and precision is given to the terms of such memorandum. The custom of selling goods liable to .be taxed under the .revenue act in question, by two prices according as they were intended for domestic consumption or exportation, was fully established; short price being that without the addition of the duty,- and long price with the duty added. The broker who made the sale testified to a long conversation between himself and one of the plaintiffs and-one of the defendants, and that the former understood the matter perfectly xoell. The phrase, “ under the tax law,” was understood by both parties. It was understood these articles were to-be manufactured under such law, and such phrase was understood to refer to the short price articles. The parties to the sale understood the matter perfectly well, that it was to be manufactured unddr the laio. This evidence was of course properly admitted to interpret the meaning of the parties. Not only the habitual use of words in a particular sense by an individual, (Wigram on Ev., p. 54, n. c. App. 1, p. 85, Jarmyn on Wills, 381-383,) as well as by persons of a particular trade or occupation or classes of persons or inhabitants of a particular locality, may be proved, (Shore v. Wilson, 9 Cl. & Fin. 555, per Parke, B.) but also surrounding circumstances, including the acts and declarations of the parties before making the agreement, have been admitted to render general terms specific, vague terms definite, and ambiguous terms certain. (Cole v. Wendel, 8 John. 116. Ely v. Adams, 19 id. 313. Almgren v. Dutilh, 5 N. Y. Rep. 28. Walrath v. Thompson, 2 id. 185. Agawam Bank v. Strever, 18 N. Y. Rep. 502. Perkins v. Goodman, 21 Barb. 218. Brinkerhoff v. Olp, 35 id. 27. Davis v. Talcott, 14 id. 611.)

The terms “ duty paid,” implied of course that the defendants were to pay the duty, and consequently to be entitled to its return in case the alcohol was afterwards exported. There can be no doubt, therefore, that in fact both parties entered into the contract under the supposition that no change would be made in the time when the revenue act should go into operation. The change may therefore be considered as an unexpected event, which, in a court of equity, if not at law, would discharge the contract. In the case of Quick v. Stuveysant, (2 Paige, 84,) lands actually conveyed by a deed, and not merely agreed to be by an executory contract, were ordered to be reconveyed, because they had originally been conveyed to carry out an agreement to lay out streets over the lands of both parties, the laying out of which had been subsequently prohibited by law. The reason 'assigned was, that while courts of common law only notice what voluntary acts are done, so that a deed would be effectual between the parties without regard to consequences, courts of equity consider every deed as a mere means to accomplish an end, and if an unexpected result occurs to defeat that end, they will undo the effect of such deed, and restore parties. to their former position. By parity of reasoning, an executory contract to deliver an article contemplated by both parties to be dutiable under a certain law, which by a change in the law afterwards becomes not dutiable, should not be enforced, since the subject matter of the contract is substantially and unexpectedly changed. If no reference had been made to the law, both parties would have taken the risk of a change in it; but the express reference to it, shows the understanding of the parties that the only subject matter' of the contract was a dutiable article, (Hildreth v. Buell, 18 Barb. 107,) and not merely alcohol as a subject of commerce.

It follows, then, that whether the contract in question is to be construed as contemplating, and made subject to, the power of the secretary of the treasury, to relieve all alcohol made before the first of September from duties under the revenue law in question, and thus to render it impossible for the defendants to fulfill their agreement, or as looking only to such law taking effect without any change by such officer in the time thereof, the defendants were entitled to be relieved from the performance of such contract.

The liability of the alcohol to duty could not be waived by ■ the plaintiff, because it is not apparent that such qualification was intended to be exclusively for his benefit. The result of enforcing this contract against the defendants would be to • compel them to pay the duty of forty cents per gallon for that for which the)1" are to receive only forty-five, cents by the contract, or to make them pay in damages the long price, including the duty for what they sold at short price, and which, at that kind of price, was only worth the contract price on the day the plaintiff demanded it. It is, perhaps, not to be deprecated, that the law contains principles capable of preventing such injustice.

The judgment ought therefore to be reversed, and a new trial ordered, with costs to abide the event,

Judgment for the plaintiffs.  