The testimony of witnesses introduced by *318the plaintiff, as well as by the defendants, shows that there was in the store referred to in the contract, and constituting a part of the stock of goods, which was the subject thereof, certain spirituous liquors of American manufacture; and that an account of the same was taken promiscuously with the other goods, when the parties were present, though they were afterwards transferred and entered upon a separate invoice by the direction of both.

The case shows no denial to have been made by the plaintiff, that the liquors were a part of the goods belonging to him and in the store.

The plaintiff did not rely upon any license to make sale of spirituous liquors; and one ground of defence was, that the written contract was invalid, because it was partly for. the sale of articles which could not be legally sold. The plaintiff contended, that the spirituous liquors were the subject of another and a verbal contract, and that the consideration was to be paid in promissory notes, separate and distinct from those to be given for the remaining portion of the goods.

It appears by the case, that a witness called by the defendants, stated that he heard a conversation between the parties in relation to the penalty in the contract. The plaintiff objected to all conversation before the contract was signed. The witness testified that the plaintiff said there would be liquors to the value of $400 or $500. The defendant, Dillingham, told the plaintiff he had better take the liquors out, he°might take advantage of the law; the plaintiff said he would risk that. The witness then stated, that this was before and after the contract.

Assuming that the objection extended to this testimony, has the plaintiff been injuredsb^ its introduction? It is only so far as the conversation took j>lace before the execution of the contract, that we are called upon to consider, whether it was proper or otherwise, no objection having been interposed, to the conversation which occurred afterwards.

On the question, whether the sale of the liquors was under the written contract, the conversation detailed by the witness, *319which took place after the agreement to sell all the goods was executed, was not incompetent, and might have had an important influence upon the minds of the jury. If the parties were attempting at the time they took an account of the goods to evade the statute of 1846, c. 205, “to restrict the sale of intoxicating drinks,” when they really designed that the transfer should be by virtue of the written contract; such an attempt could not avail them; the law was effectual against the forms intended to conceal the substance. _ The defendants were entitled to the conversation of the parties, as it occurred while they were making schedules of the goods, and it could not have been excluded, for the reason that a similar conversation took place before the contract was signed. On request, the Judge could have instructed the jury, that the conversation before the contract was made, would not influence their minds, if it was incompetent. This request was not made, and it does not appear, by the statement of the witness, that the conversation first heard by him was responsive to the defendants’ inquiry.

If the conversation of the parties, when together, before the written contract was complete, had any tendency to give it a meaning less favorable to the plaintiff, than that to be derived from the contract itself, it was clearly incompetent, when introduced in such a manner as to expose him to be so affected. But if the evidence had no such tendency, he has no cause of complaint, as the verdict against him could not have been the effect of such evidence. The contract was, that the plaintiff should sell “ all the stock of goods, wares, medicines, furniture, fixtures now in the store lately occupied by Joseph E. Ladd, and all that appertain thereto.” By the terms of this agreement, all the spirituous liquors in that store was embraced. And it could acquire no strength by the conversation of the parties stated by the witness, objected to. The fact, that the plaintiff and the defendants treated the liquors in that conversation as belonging to the stock, could have no tendency whatever to give to the written instrument an interpretation against the plaintiff, which would not be *320required by its plain, and unambiguous language. And in this view the evidence was not material.

The exclusion of evidence offered by the plaintiff, of statements made at, and before the contract was signed, as to the liquors, is relied upon, as a ground for sustaining the exceptions. The exceptions do not exhibit the facts attempted to be proved. Nothing, which could qualify the meaning of the contract according to the construction to be put upon its language, in favoring the plaintiff, was admissible. We cannot regard the evidence as admissible on any conjectural ground of its import.

The instruction to the jury treated the contract as invalid if it was designed by the parties to make a sale, in any respect illegal by the laws of the State. Although the instrument, by its terms, was for a sale of the liquors with' other goods in the store, yet if the parties did not regard them as coming within the contract afterwards, the jury were authorized to hold the contract valid and binding. This was clearly favorable to the plaintiff. And the instruction, that if the account of the liquors was taken under the written contract, and the parties regarded them as falling within its meaning, and the action for a breach of the covenant therein, could not be maintained, was not erroneous. Upon satisfactory evidence of the truth of the affirmative of this issue, the plain meaning of the written agreement was carried out.

In the opinion of a majority of the Court, the exceptions should be overruled.