The opinion of the court was delivered by

The parties to this suit entered into a contract September 15th, 1944, for the purchase and sale of a truck. *592 The plaintiff made a down payment of $500. The sale was not consummated because the plaintiff could not obtain a permit for the purchase of the truck from the Office of Defense Transportation. The plaintiff recovered the down payment.

The defendant appeals claiming that the contract was complete and regular upon its face, and that its written terms could not be varied by parole. There is some doubt whether the contract was complete upon its face. It seems not to have been and lacks acceptance but we make no point of that. Federal regulations in existence at the time the contract was made required that the purchaser obtain a permit from the Office of Defense Transportation. These regulations were known to both the buyer and the seller and any contract which they made was subject to such regulation, and the court in which the action was brought was obliged to take notice thereof.

Since the plaintiff could not obtain a permit he could not make the purchase and the defendant could not make the sale. When such fact became known to the defendant it was his duty to return the deposit.

Having failed so to do after demand, the action was properly brought and the judgment of the District Court is affirmed, with costs.