JUDGMENT

Dalip Singh, J. - --The plaintiffs in this case sued the defendants alleging a contract, dated 27th August 1918, on which the defendants had agreed to purchase 13 bales of red shirting No. 1100 of the office of Gordhan Das Ram Gopal at the rate of Rs. 11-9 per yd. the due date being 7th October 1918. The plaintiffs alleged further that they had duly sent to the defendants a memo showing the price of goods and containing the numbers of the bales contracted for and had thus appropriated certain goods to the contract and the defendants had neither tendered money for the goods contracted nor taken delivery and the plaintiffs had thereupon moved the Hindustani Merchantile Association and the defendants had thereupon agreed to pay the money and take the goods but had failed to do so and the plaintiffs had, therefore, resold the goods by public auction on 13th November 1918. The plaintiff's, therefore, sued the defendants for Rs. 12,359-9-6 as short proceeds. They also in the alternative pleaded for damages on account of breach of the contract and for interest of Rs. 2,047-6-0 at the market rate of 10 per cent per mensem according to the terms of the contract, usage and the notice dated 29th November 1918. In all, therefore, they claimed Rs. 14,406-7-3 with future interest at the rate of 10 per cent per mensem from the date of institution of the suit till date of realization and costs.

2. The defendants raised various pleas which are printed at p. 40 of the paper book. The trial Court struck various issues printed at p. 43 of the paper book. The trial Court found most of the issues in favour of the plaintiffs, but dismissed the plaintiffs' suit holding that the plaintiff firm had no right of resale as the defendant had never assented to the appropriation of the goods and no damage irrespective of the resale had occurred at all because the market rate on the due date was not proved. The plaintiffs have appealed and the counsel for the respondents has supported the decree of the lower Court on the grounds which have been found against them by the trial Court.

3. The first point to be decided in the case is whether there was a contract or not. Counsel for the defendant-respondents urges that the bought and sold notes differ, because the sold note contains the words "according to the terms of the contract" which do not occur in the bought note. The bought note, however, is written on a printed form of the Hindustani Mercantile Association for the sale of ready goods, and it seems to us obvious that the sold note which is written on an ordinary piece of paper, meant to incorporate the printed terms by reference to "the contract." The vernacular reading makes this perfectly clear. It has been urged by counsel for the respondents that the plaintiffs were under the impression that the terms of the Hindustani Mercantile Association printed form for the sale of forward goods applied and, therefore, the parties were never ad idem in respect of the terms of the contract. He relies on the letter Ex. 9 by the plaintiffs. It seems to us, however, that in deciding what the intention of the parties to the contract was we have to look to their expressed intention contained in the terms of the contract, and viewed in this light it is clear to us that the parties contracted on the basis of the printed terms contained in the Hindustani Mercantile Association form for ready goods. The mere fact that the plaintiffs wrongly imagined that the reference in this printed form to the other printed form incorporated certain terms of that second printed form in the first form has nothing to do with the case. We, therefore, hold that there was a contract between the parties.

4. It is contended by counsel for the appellants that there was a contractual right of resale apart from the right under Section 107, Contract Act. In reply, counsel for the appellant withdrew this ground entirely and it is, therefore, not necessary for us to decide it.

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