Stact, C. J.
The parties have contracted against the very contingency which has arisen here. Indeed, their agreement was made with a view to its probable happening.
' On 25 October, 1941, the plaintiff “traded” the defendant an old automobile, “leaving a balance of $175.00 on deposit on a new car to be delivered when I want it.” It was not then contemplated that the new automobile should be delivered prior to 1 January, 1942. However, after closing the transaction, “the defendant advised the plaintiff that after January he probably would not be able to' get automobiles to deliver to him until after the duration.” In the light of this conversation, the parties drew up and signed the memorandum of agreement set out in the record. In this the plaintiff agrees that the defendant “will not be held liable for any delay or failure through any cause whatsoever in making delivery. The car will be delivered at the price upon delivery date.” And further, “In case I fail (for 48 hours) to take delivery of car when notified, my deposit may be retained as liquidated damages,” etc.
In other words, anticipating that the purchase of new automobiles might thereafter be “frozen,” the parties entered into an agreement, setting out that in such event the plaintiff’s memo of credit with the defendant should likewise be “frozen.” That is, the parties undertook in advance to say how the matter would be handled if the freezing of *66new automobiles should occur. Atlantic Steel Co. v. Campbell Goal Co., 262 Fed., 565. This is a lawful contract, and neither the Acts of Congress nor the Executive Orders relied upon by the plaintiff purport to declare it unlawful or inoperative. These Federal pronouncements were intended for other facts. They are not controlling on this record. The plaintiff was at liberty to cancel the credit memorandum, if he wanted to, or to do with it as he pleased. He enjoyed then, and still enjoys, freedom of contract in respect of such credit.
Prior to the time when “the freezing of new automobiles” went into effect, the defendant approached the plaintiff relative to making delivery of a new car as per their agreement — the defendant then being ready, able and willing to make delivery — but the plaintiff said he “was not ready for an automobile.”
The plaintiff, therefore, finds himself face to face with two insurmountable provisions in his contract:
First, he has agreed that the defendant shall not be liable for any delay or failure through any cause whatsoever in making delivery of the new car. This defeats the present action.
Second, he has agreed that in case he fails to accept delivery within 48 hours after notice, his deposit may be retained as liquidated damages. While notice was given to the plaintiff prior to the “freezing” order, thereby possibly making available the terms of this provision, still the defendant has not sought to take advantage of it, because of the original understanding that delivery of the new automobile was not contemplated prior to January 1, 1942.
Notwithstanding these permissible defenses, the defendant has signified his willingness to make delivery, if and when the plaintiff wants a new car and is permitted to purchase one. The plaintiff made application for permit to obtain a new car, after rationing went into effect, but his application was denied.
Plaintiff sues to recover $175.00, “due on contract.” On the hearing in the Superior Court he voluntarily reduced his claim to $150.00. Even the plaintiff will not say what his credit memorandum is worth in cash, for he realizes the defendant had a profit in excess of the memorandum in the sale of a new automobile, and he also remembers the stipulation against liability in case of “freezing.” He did not think so much of his credit memorandum when he signed the agreement releasing the defendant from liability in case of “delay or failure” to make delivery of the new car.
The disposition of the old car by the defendant is not germane to the case. Title passed and the plaintiff has no further interest in this car. Viewed in the light most favorable to the plaintiff, the contract must at least be construed as an agreement to allow the plaintiff’s credit with *67tbe defendant to remain in statu quo until tbe purchase and sale of a new automobile can be consummated. Plaintiff would ignore tbis agreement. But it is signed by bim; it is valid, and be is bound by its terms.
Tbe trial court predicated its judgment on tbe supposed abrogation of tbe “due bill” given at tbe time of tbe trade, and “upon wbicb tbe present action is based,” according to a recital in tbe judgment. Tbe case is controlled by tbe memorandum of agreement afterwards signed by tbe parties and in wbicb tbe defendant is relieved of liability for any delay or failure tbrougb any cause whatsoever in making delivery of a new ear. Tbe defendant is entitled to prevail on tbe record as presented. Judgment accordingly.
Reversed.