Richard Garth, C.J.
1. This suit is brought to enforce the specific performance of a contract for the purchase of a house.
2. The lower Court held that the alleged contract was not proved and dismissed the suit.
3. The plaintiff has appealed to this Court, and he has relied in support of his case upon two letters, which passed on the 3rd of September 1882, as well as upon the conduct of the parties, and a conversation which occurred on the afternoon of the same day after the letters were exchanged.
4. The negotiation, it seems, was brought about by a house-broker named Hurro Chunder Ghose, who knew that the defendant was on the look-out for a house in the particular locality, and proposed to him to buy this one. After looking over a portion of the house, and hearing Hurro Chunder's description of it, the defendant, at Hurro Chunder's suggestion, wrote the following letter to the plaintiffs in his wife's name:
To Sreejoot Baboo Koylash Chunder Doss, and Sreejoot Baboo Girindra Nath Doss, Mohassoys.
The value of your house, No. 10, Rutton Mistry's Lane, in Patuldangah, has been fixed through Sreejoot Hurro Chunder Ghose, broker, at Rs. 13,125; agreeing to that value I write this letter. Please come over to the house of the attorney, Baboo Mooraly Dhur Sen, Mohassoy, this day between 3 and 4 o'clock in the afternoon with the title-deeds of the house, and receive the earnest.
There shall be no doing othorwise. Finis. 1289, 19th Bhadro.
Sree Runginee Dossee, now residing in the house No. 49, Jhamapuker.
By the pen of Sree Kisory Mohun Ghose.
5. Upon receiving this letter from Hurro Chunder, the plaintiffs through their manager wrote the following letter to the defendant's wife:
To Sreemutty Runginee Dossee, Mohassoy.
You having agreed to purchase our house, No. 10, Rutton Mistry's Lane, in Arcooly, for Rs. 13,125, have sent a letter this day through Sreejoot Hurro Chunder Ghose, broker, and we are agreeable to it, and between 3 and 1 o'clock in the afternoon this day we will be present at the house of your attorney, Baboo Mooraly Dhur Sen, Mohassoy, and receive the earnest. Finis. 1289, 19th Bhadro.
Sree Koylash Chunder Doss
Sree Girindro Nath Doss.
By the pen of Sree Mohindro Nath Mookerji
6. The plaintiffs contend that these letters constituted, and were intended to constitute, a pucca or binding agreement. The defendant, on the other hand, contends that they were only intended as commencing the negotiation, which was to have been completed by the payment of the earnest-money, and the execution of a regular byna contract.
7. At the trial, however, no evidence was given on behalf of the defendants. The learned Judge decided against the plaintiffs on their own showing; and I think that he was right.
8. It seems to me that the real question is, whether the two letters, which were exchanged on the 3rd of September, do, in fact, constitute a complete and binding agreement.
9. For the purpose of determining this question, we must gather the intention of the parties from the letters themselves, and not from what was said or intended before the letters were exchanged.
10. In consequence of some doubt being suggested during the argument, as to whether the letters had been correctly translated, we sent for one of the Court interpreters, and asked him to translate them in open Court. His translation agreed substantially with that which had been previously furnished, and by the aid of it the construction which I put upon the defendant's letter is this:
As the value of your house has been fixed by Hurro Chunder, the broker, at Rs. 13,125, and as I agree to that value, I write this letter to request that you will come to the house of my attorney, Mooraly Dhur Sen, between 3 and 4 o'clock to-day, bringing with you the title-deeds of your house, and receive the earnest-money. If you will not fail me in this, I will not fail you.
11. The letter in answer appears to mean this:
As you have agreed to purchase my house for Rs. 13,125, and have sent me your letter to that effect, we agree to your proposal, and will be at the house of your attorney to-day between 3 and 4 o'clock, and receive the earnest-money.
12. Mr. Allen has contended that the first portion of the defendant's letter is an absolute proposal by him to buy the house for the sum named, independently of all other considerations; and that the remainder of the letter forms no part of the proposal, but merely suggests the time, place and mariner in which the proposal is to be carried out.
13. If this were really so, I should quite agree with Mr. Allen that  the case would come within the principle of Rossiter v. Miller L.R. 3 Ap. Cas. 1124 and the other authorities to which he has very properly called our attention. But I cannot take that view of the letter. It contains, as it seems to me, no absolute proposal or undertaking to purchase the house; what had been done at that time, with the aid of the broker, was merely to ascertain the proper price; and all that the defendant meant to say was 'so far as price is concerned, I am quite content with that which my broker has fixed-and if you are also content, I beg you will come to my attorney's office with your title-deeds; when we arrange matters, you shall receive the earnest-money.'
14. His intention, as it seems to me, was that the matter should be finally settled at the attorney's office; and two very important matters were left for that occasion--namely, the inspection of the title-deeds, and the amount and payment of the earnest-money. It was very proper that the defendant should not commit--himself; to any binding contract, till he knew something, at any rate of the nature of the plaintiff's title; and as regards the earnest-money, it must be observed that both parties treat that as an element in the bargain. How then could the contract be said to be complete and binding, until the amount of the earnest-money had been ascertained.
15. In point of fact, no meeting took place at the attorney's office, because the attorney was not there, and the defendant refused to consult any other attorney; but suppose the meeting had taken place, and parties had been unable to agree as to the amount of the earnest-money, how could it possibly have been said that they had arrived at any binding agreement.
16. Mr. Allen tried hard to escape from this difficulty in one of three ways:
1st.--By the argument, which I have already mentioned, that the payment of the earnest-money did not affect the contract itself, but only the way in which it was to be carried out.
But it seems to me that both parties treated it as an element in the contract; and if so, the contract could not be complete until the amount of the earnest-money was ascertained.
2ndly,--He argued that the Court could ascertain the amount of the earnest-money, as it has ascertained in several cases the price of the property sold.
But the amount to be paid for earnest-money must, from its very nature, be a matter of agreement between the parties; it cannot be ascertained by the Court, for the best of reasons, because it is paid not on the completion but on the making of the contract; or at any rate at some time before the completion.
3rdly.--Then lastly, Mr. Allen argued, that assuming the earnest-money to have been an element in the contract, his clients were content to waive it. But no notice of any waiver appears to have been given; and even if it had been, the defendant had by that time repudiated the contract. If the contract was incomplete and not binding on the 3rd of September, nothing that was afterwards done by the plaintiffs could have made their position any better.
17. I am satisfied, on the whole, that looking to the letter itself, the defendant never made or intended to make any absolute proposal to purchase the property. I think he never intended to bind himself to anything, till his attorney knew something of the plaintiff's title, and the amount of the earnest-money had been ascertained.
18. As soon as these additional matters had been adjusted, the earnest-money would have been paid and a byna contract prepared. That is undoubtedly the usual course in native transactions of this kind; and it seems to me that what was said by the plaintiffs' manager in giving his evidence strongly confirms that view.
19. Then lastly, Mr. Allen contended that what was said by the defendant when the parties met afterwards at Baboo Mooraly Dhur Sen's office was sufficient to constitute a binding contract; according to the plaintiffs' manager's evidence, the defendant said: 'By the letter you have given me, you have bound yourself to sell the property to me, and by the letter I have given you, I have bound myself to take the property.'
20. Even assuming this to be true, I think it makes the plaintiffs' case no better. It was no new promise, but only a reference to the letters which had passed; and I don't think it would justify us in putting a different construction upon the letters, than that which they bear upon the face of them. Besides which, as the amount of earnest-money was not then fixed, the words said to have been used by the defendant would not relieve the plaintiffs from that difficulty.
21. But even if I Were disposed to take a different view of the evidence of the plaintiffs' manager, I think we should clearly be bound, before deciding in the plaintiffs' favour, to give the defendant an opportunity of contradicting this statement, and going generally into his case.
22. The learned Judge, as we understand, dismissed the suit upon the plaintiffs' own evidence, and without calling upon the defendant to go into his case. As it is, I agree with the Court below and think the appeal should be dismissed with costs on scale 2.
23. I also think that the original Court was right. The main argument in the appeal was that as the parties to the contract, the subject-matter and the price were all ascertained, there was a binding agreement from which neither party was at liberty to recede. This rule, however, cannot be applied without qualification to the present case. The cases to which reference has been made Ridgway v. Wharton 6 H.R. 238; Rossiter v. Miller L.R. 3 Ap. Cas. 1124; Bownewell v. Jenkins L.R. 8 Ch. D. 70; Crossly v. Maycock L.R. 18 Eq. 180; Chinnock v. Marchioness of Ely 4 de G.J. & S. 638 in my opinion, establish the rule that, if the material ingredients of the agreement are ascertained, and if there be a distinct offer on one side, and a distinct acceptance on the other, a contract arises, notwithstanding that the parties may have recorded their intention that it shall be put into a more formal shape by a solicitor. But, on the other hand, if on the true construction of the correspondence and evidence it appears to have been the intention of the parties that they are not to be bound till the agreement has been put into a formal shape and approved by them, then the parties ought not to be bound till that formal document has been executed. In the present instance I think that the proper construction to be put on the letters is that the defendant did intimate his intention not to be bound till the deeds had been produced at his attorney's and with his attorney's approval the byna--putro executed, and the byna or earnest-money paid.
24. I concur on the ground on which the original Court held this to be the right construction, and especially on the fact that neither of the letters was written by the contracting parties, and that the request in the defendant's letter to the plaintiffs to come over to the house of Mooraly Dhur with the title-deeds was not agreed to in the plaintiffs' letter, nor was in fact complied with. I concur accordingly in thinking that the original Court was right in dismissing the appeal.