Coutts-Trotter, C. J.
1. The plaintiffs in this case are a firm trading under the name and style of M. V. Krishna Iyer & Sons at Kumbakonam. The defendants are: (1) Messrs. William C. Yuille & Co., Ltd., carrying on business as merchants in Glasgow; and (2) the Indian Trading Co., who carried on business in Madras and acted as intermediators between the plaintiffs and Messrs. William C. Yuille & Co., Ltd. The suit is brought by the plaintiffs for the return of certain advances amounting in all to Rs. 5,000 together with interest made by them by way of deposit in respect of three contracts for the purchase by them of sheets of yellow metal. No question arises as to the liability in one form or another of the Indian Trading Co., but they have disappeared and no money is recoverable from them, and the plaintiffs, therefore, seek to affix liability upon the first defendants Messrs. William C. Yuille & Co., Ltd. The course of business is shown in the documents, and neither side thought it worth while to call oral evidence at the trial. The first material document is an indent, Ex. A, dated 28th June 1921, from the plaintiffs at Kumbakonam to the Indian Trading Company at Madras. The opening sentence is as follows:
We hereby request you to instruct your agents or suppliers to purchase for us the undermentioned goods on our account and risk upon the terms stated below.
2. That appears to be in terms a request to the Indian Trading Co. to get their suppliers or agents who must be taken for the purposes of this case to be William C. Yuille Co., Ltd., to bring about a binding contract between the plaintiffs and Messrs. M. V. Krishna Iyer & Sons of the one part, and some supplier or manufacturer of yellow metal in England or Scotland, of the other. The terms of the document might lend colour to the inference that, in spite of the opening clause, what was really intended to be effected was a contract between M. V. Krishna Iyer & Sons and the Indian Trading Co., a contract, I mean, not merely of agency but of purchase and sale of goods. What happened was that, on the 30th of June 1921, the Indian Trading Co. wrote to Messrs. William C. Yuille Co. Ltd., at Glasgow an order (Ex. D 3) of which the following are the material terms:
Please supply us the following as per instructions hereunder.
3. Then follows a specification for assorted sizes of yellow metal sheets amounting in all to 10 1/2 tons. The document contains a provision that the draft is to be drawn against M. V. Krishna Iyer & Sons of Kumbakonam and a proviso that the Indian Trading Co.'s commission of 2 1/2 per cent. and the advances contemplated to be made by M. V. Krishna Iyer & Co. should be deducted by the Bank at the time of meeting the draft. On 11th July 1921, Ex. C-1, the Indian Trading Co. informed M. V. Krishna Iyer & Sons that they had heard by cable that the indent for 10 1/2 tons had been accepted. There is no trace of this cable, and in view of the circumstances appearing in the letter correspondence, it seems clear that that statement was untrue. In Ex. D-4, dated 14th July 1921, the Indian Trading Co. wrote to Messrs. C. Yuille & Co., Ltd., a letter in which they state:
We have asked you to ship us continental sheets at 90 per ton,
which, of course, lends colour to the suggestion that the Indian Trading Co. were purporting to buy as principal goods direct from William C. Yuille Co., Ltd. On 15th August 1921, a cable was sent by William C. Yuille Co., Ltd. to the Indian Trading Co., in the following terms:
We can now accept your order yellow metal sheets No. 9 against payment of 200.
4. Indent No. 9 is the indent which had been signed by the plaintiffs and forwarded to the Indian Trading Co., and by them to Messrs. William C. Yuille Co., Ltd. In due course of time, under the first contract, there arrived a sale-note, Ex. B-8, dated 31st August 1921, which is addressed by W. C. Yuille Co., Ltd., to Messrs. M. V. Krishna Iyer & Sons per Messrs. Indian Trading Co. It refers us in terms to indent No. 9 and to an order quoted as No. B 181 which apparently has been lost during the course of the case and is not forthcoming. The other document states:
We beg to confirm having sold you to-day the undernoted goods;
and then follows a description of the 10 1/2 tons yellow metal sheets. The document was sent by William C. Yuille Ltd. to the Indian Trading Co. with a covering letter, Ex. D-9, dated the 31st August, in which they say:
We have yours of 30th June confirming the cablegram seat to us offering order for 10 tons 30/60 lbs. yellow metal sheets and send you herewith our sale-note in duplicate, copy of which please hand to your clients.
5. The copy was duly sent by the Indian Trading Co. to the plaintiffs.
6. The learned Judge has found that the Indian Trading Co. were agents of the plaintiffs, and that whatever their obligations might be as such agents, they failed to establish privity of contract between the plaintiffs and Messrs. William C. Yuille & Co., Ltd. There are three possibilities: (1) that there was a contract of sale between the plaintiffs and William C. Yuille & Co., Ltd.; (2) that there was no concluded contract between them at all, but William C. Yuille and Co., Ltd., have had the benefit of the money paid to them by the plaintiffs by way of advances to Indian Trading Co., and admittedly remitted by them to William C. Yuille & Co. Ltd.; and (3) that, whatever their instructions, what in fact the Indian Trading Co. did was to effect a binding contract of sale between themselves of the one part and Messrs. William C. Yuille & Co., Ltd., of the other. If that last hypothesis be correct, it is hardly disputed that the learned Judge's conclusion was right and that the plaintiffs have no remedy against Messrs. William C. Yuille & Co., Ltd. There is no doubt that the sale-note of 31st August, Ex. B-1, points strongly to the view that Messrs. William C. Yuille & Co., Ltd., imagined themselves to be concluding a binding contract with the plaintiffs. The difficulty in that view is that, treating that letter as an acceptance, there is no offer to which it can be referred, because the only offer from the plaintiffs is that contained in the indent note and that was an offer not to enter into a contract either with the Indian Trading Co. or their agents, Messrs. William C. Yuille & Co., Ltd., but with the ultimate manufacturer or supplier of the goods. If the matter stood there, the right conclusion might seem to be that there was no contract and that Messrs. William C. Yuille & Co., Ltd.. having received moneys which, undoubtedly. emanated from the plaintiffs on the basis of a non-existent contract were bound in equity to refund such moneys to the plaintiffs as moneys had and received to their use, it being practically undisputed that yellow metal sheets were not delivered in accordance with the obligations outlined either in the indent note or sake-note. My own view is that, whatever the instructions given to the Indian Trading Co. by plaintiffs, and, however culpably they neglected the tenor of those instructions, what in fact they did was to make a binding contract of sale between themselves of the one part and Messrs. William C. Yuille & Co., Ltd., of the other and that appears to me to be contained as to the offer in the letter of the 30th June 1921 Ex. D-3 and as to the acceptance, in the telegram of 15th August 1921, (Ex. D) sent to the Indian Trading Co. If that be the correct view, it is immaterial that Messrs. William C. Yuille & Co., Ltd., in Ex. B-1, a fortnight later, on the 31st August, endeavoured to create evidence that there was a contract between themselves and the plaintiffs. That being so, the findings of the learned Judge that there was no privity of contract between the plaintiffs and William C. Yuille & Co., Ltd., is correct and this suit must fail. It becomes immaterial to consider whether the Indian Trading Co. were the agents of the plaintiffs or William C. Yuille & Co., Ltd. or of both. The decision of Macleod, J., in Mahomed Ally Ebrahim Pir Khan v. Schiller, Dosogni & Co.  13 Bom. 470 has no bearing on the present case. We are of opinion that the plaintiffs have failed to establish that there was any contract relation between themselves and William C. Yuille & Co., Ltd., which would enable them to sue that firm for the moneys which they handed over to the Indian Trading Co. As between the Indian Trading Co. and William C. Yuille & Co., Ltd., these moneys were paid by the Indian Trading Co. as their own moneys in discharge of their own debt, and the fact that the ultimate source was the plaintiffs has no effect upon the legal position of the parties.
7. The result is that the appeal must be dismissed with costs.
Viswanatha Sastri, J.
8. I agree with my Lord.