The opinion
Dixon, J.
(dissenting). The opinion of the court in this case concedes that the agreements of September 18th and 24th, 1897, between the plaintiffs and defendants, on which the suit was brought, were made in consequence of and with regard to the contracts of like date between the plaintiffs and Bunge & Company, and that, in ascertaining the obligation of the defendants, some reference must be made to those contracts. The opinion, however, confines the purpose of-this reference to the identification of the subject-matter of the defendants5 agreements, while I would deem it more reasonable to declare the purpose to be the ascertainment of every clause in those contracts which was material to the obligation of-the defendants; for each of the Bunge contracts is an entirety, and I perceive no ground on which it can be held that these parties had respect to some portions of those contracts and not to all parts material to their own bargains. But let it be assumed that the reference is limited to the identification of the subject-matter; what is that subject-matter? The *325 opinion rests on the idea that it is the sugar bought by the plaintiffs from Bunge & Company. But that is an error. 'The subject-matter of the defendants’ agreements is the duty to be paid on the importation of sugar. This is the principal thing, to which the sugar bought is only an incident. Hence, according to the conceded purpose of the reference, we must search the Bunge contracts for every feature by which that matter may be identified. Thus, it might readily be supposed that the duty bargained for would depend upon the country from which the sugar should be shipped, the nationality of the bottom in which it should be carried, the port- at which it should be landed, and the time of its arrival. On all these points the defendants’ agreements are silent, but on three of them—the country, the port and the time of arrival, so far as it would be determined by the time of shipment and means of transportation—the Bunge contracts are explicit, and it happens that the fourth point—-the nationality of the bottom—is unimportant. But' can it be that, if the duty on shipments from Holland were less than that on shipments from Belgium, the duty on imports to New York and Baltimore were less than that on imports to Halifax, and the duty on arrivals in the year 1897 were less than that to be imposed on arrivals in 1898, the plaintiffs could have accepted sugar shipped in Belgium for Halifax, by sailing1 vessel, in December, 1897, instead of sugar shipped in Holland for New York and Baltimore, by steamer, in October and November, 1897, and still have held the defendants to an indemnity against the duty thus chargeable? Such a conclusion would seem .to me utterly irrational. But on what ground could it be excluded, if our reference to the Bunge contracts must be confined to the identification of the sugar sold? The true principle is that, by the defendants’ agreements, we are referred to the Bunge contracts as entireties for everything therein which is material to the defendants’, obligation, or, if we must adopt the limited form of statement, material to the duty which formed the subject-matter of that obligation.
Among the clauses thus material is that requiring certifi *326 cates, in one case attested by the mayor of the place where the sugar was refined, in the other case sworn to by the refiners, that no export bounty was receivable on the sugar delivered. The materiality of this clause arose from the fact that, if any export bounty had been received on sugar imported to this countin’', our government increased the normal duty of $1.95 per one hundred pounds by the amount of that bounty, and thus the. bounty became the measure of the defendants’ responsibility. As a.precaution against the delivery and acceptance, under the Bunge contracts, of sugar on which such bounty had been received, those contracts provided for the payment of the price only on production of such certificates. In my judgment, the. defendants are entitled to the benefit of that provision, and the plaintiffs had no right to waive it and still insist on indemnity from the defendants. Although the certificates would not absolutely preclude the levy of a countervailing duty by our government, yet they would render it highly probable that the sugar imported was not subject to such a duty, and therefore that it would not be exacted. The duty for which the plaintiffs now demand indemnity is not the duty that would have been levied, in all probability, if the stipulations of the Bunge contracts on that subject had been performed, and therefore is not, I think, the duty to which the defendants’ agreements referred.
For affirmance—The Chancellor, Ci-iiee Justice, Tan Sycicel, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Yredenburgii, Yooriiees, Yroom, Green. 14.
For reversal—Dixon. 1.