Richard Garth, C.J.
1. The contract in this case, as I understand, was in writing; there was nothing ambiguous about its terms, and it appeared upon the face of it to be a contract for the sale and purchase of Rs. 25,000 Government Securities, to be delivered on the 1st or 2nd of September following.
2. The Judge of the Small Cause Court appears to have gone into the question upon oral evidence, whether the contract between the parties was really what it purported to be, or whether it was merely a wagering contract for differences without any intention by either party to carry out the sale and purchase of the securities.
3. Upon this question the Judge has decided that it was a wagering contract, and as such void under Section 30 of the Indian Contract Act, or contrary to public policy under Section 23 of that Act; and the first question submitted to us by the reference is, whether he was right in so holding.
4. Now, if it was competent to the Judge to determine upon oral evidence what the nature of the contract was, I should consider that we had no right to question his finding upon the facts; but it seems to me that under Section 92 of the Evidence Act it was not competent for the defendant to go into oral evidence for the purpose of varying or contradicting the express terms of the contract. There was no ambiguity about it, and I do not see why evidence was admissible to vary or contradict its terms.
5. In the case of Grizewood v. Blane 11 C.B. 538 to which we have been referred, the contract upon which the plaintiff declared was not for the sale and purchase of the share in question, but for differences in the price of the shares on a given day; and the contract was of such a nature upon the face of it that the jury might well find, as they did, that it was nothing more or less than a gambling transaction. It has since been doubted by very high authority, see Thacker v. Hardly L.R. 4 Q.B.D. 685 whether the Judge and Jury in Grizewood v. Blane 11 C.B. 339 did not take an erroneous view of the transaction; but considering the view which they did take of it, it was undoubtedly a void contract under the English Gaming and Wagering Act.
6. And the same observation applies to another case which was cited in argument before us Higginson v. Simpson L.R. 2 C.P.D. 76. In that case the language of the contract was ambiguous and it was certainly consistent with its terms that it was intended to be a gaming transaction.
7. Then it was argued by Mr. Sale that, although evidence is not admissible to alter or vary the terms of a written contract, it is admissible for the purpose of showing illegality; but a contract by way of gaming and wagering is in this country, as in England, void and not illegal. It is expressly made void by Section 30 of the Act; and it therefore cannot, in my opinion, be said to be illegal as being contrary to public policy. I have also considerable doubt whether oral evidence is admissible for the purpose of showing that the contract is in its nature illegal. So long as there is no ambiguity about it, the question whether it is illegal or not depends, as it seems to me, upon the terms of the contract itself.
8. I think, therefore, that evidence was not admissible for the purpose of varying the terms of the contract, and that the first question which is referred to us should be answered in the negative.
9. The second question is apparently founded on some misapprehension. It seems to have been taken for granted in the Court below, that a legal tender of the securities was absolutely necessary; but this was not so. If the plaintiff was ready and willing to perform his part of the contract, that is to say, if he was in a position to transfer the securities on the 2nd of September, and did his best to inform the defendant by going to his place of business, that he was so, that would be sufficient, in the absence of evidence to the contrary, to constitute readiness and willingness.
10. If the plaintiff had the stock in his possession, as he says he had, there would seem every reason to suppose that he would be prepared to carry out the transaction.
11. No man, one would think, would ordinarily find any difficulty in completing such a lucrative bargain.
12. As this point however has not been decided by the Court below, the case, must go back for that purpose.
13. The costs in this Court will abide the result of the judgment of the Court below.