Lord Dunedin :-

The plaintiffs (respondents) are merchants in Rangoon who deal in produce and have occasion to purchase sugar, which they were in the habit of getting from the defendants (appellants) who are also merchants in Rangoon. The appellants did not themselves grow sugar, but got sugar from a firm of Joakim and Company, in Sourabaya. Joakim and Company had offered a consignment to the appellants and the appellants had approached the respondents as to whether they would take sugar at the price quoted. After consultation, the appellants, with the approval of the respondents, sent a telegram to Joakim and Company on the 22nd May, 1914. The telegram was in cipher but de-coded read as follows :-

"3 27 91 65 49 6.

"3-Cannot accept your after but counter offer subject to reply within 24 hours.

"27-100 tons sup. white T.M.O., G. W., and/or similar

"91-July/December, in equal monthly quantities.

"65-11/8 per cwt. c.i.f.

"49-Option Rangoon/Calcutta.

"6-Check."

This telegram having been despatched, the respondents on the 23rd May handed to the appellants a document in the following terms :-

"Buyers, Messrs. E. M. Abowath and Company.

"I/We hereby make the following firm offer to Messrs. Balthazar and Son, Rangoon.

"On Burma Chamber of Commerce Contract Terms.

On the 25th May the appellants received from Sourabaya a telegram as follows :-

"We confirm the sale of 100 tons superior White T. M. O., G. W. and/or similar. July/December in equal monthly quantities 11/8 per cwt. c. i. f. option Rangoon/Calcutta."

On receipt of this telegram the appellants on the 26th May wrote to the respondents the following letter :-

"Messrs. E. M. Abowath and Co."

Dear Sirs, Rangoon.

'Sugar.

"We have pleasure in advising you that your offer of 11/8 for 600 tons sup. White T. M. O., G. W. and/or similar, divided into equal shipments of 100 tons a month, from July to December, has been accepted. Kindly call over and sign the necessary contract.

Yours faithfully,

"Balthazar and Son." The respondents did call and signed an indent. The indent form was really printed on a form of offer not appropriate to a contract. The space for the names of the parties was left blank, but there was filled in writing as follows :-

"Six hundred tons-Bales/Cases each containing

"Superior White T. M. O., G. W. and/or similar Java.

"Sugar at 11s. 8d. per cwt. c. i. f. Rangoon (option Rangoon/Calcutta.)

"Shipments July, August, September, October, November, December, monthly 100 tons.

"Delivery ex. Wharf.

"Delivery of the Goods to be made on "the necessary Security for the Goods "being furnished.

"........................................Stamps.

".................................................

"Half per cent. commission for 30 d/s. "credit.

"One per cent. commission for 60 d/s. "credit.

"................................................................"

and it was signed by the respondents.

The sugar was duly shipped and instalments delivered. Under a separate arrangement the appellants helped the respondents in the financing necessary, but it is immaterial to the present question to go into these arrangements. Upon the War breaking out three hundred tons out of the six hundred had been delivered, but the other three hundred tons were not delivered owing to the presence of the "Emden" in these waters.

The present action is for damages for nondelivery. The defence was that the appellants had acted only as agents in the whole matter and on the distinct understanding that they themselves accepted no responsibility under the contract.

The learned Trial Judge, considering that the terms of the documents left the matter ambiguous admitted parol evidence. The managing partner of the appellants and one of the partners of the respondents were examined. They gave the same history as to the execution of the various documents, but, as was to be expected, differed as to whether anything was said as to absence of responsibility on the appellants' part. The learned Trial Judge gave effect to the defence and dismissed the action