Judgement Appeal from a decree of the High Court (August 23, 1910) affirming a decree of Beaman J. (February 11, 1910). The appellants sued for damages for breach of an agreement (set out in their Lordships judgment) which was admittedly one of guarantee, the question at issue being whether it was unconditional, or contingent. One Dwarkadas Dharamsey was partner in the firm of Tricumdas Dwarkadas & Co., which acted as managers of the Tricumdas Mills Company, Limited. On August 7, 1909, he applied to the appellants for a loan of a lakh and a half of rupees, explaining that he was about to raise a loan of eleven lakhs on first mortgage of the mills through the respondent, who was a well-known share-broker in a large way of business. The appellants then took from the respondent the contract sued upon and advanced the money required. Two days afterwards Dwarkadas Dharamsey informed the respondent that he declined to mortgage the mills to him, and thereupon, in answer to a demand from the appellants, the respondent repudiated liability on the ground that he had been and was in a position to procure the loan 7 Law. Rep. 39 Ind. App. 152 ( 1911- 1912) Vissanji, Sons & C o. V. Shapurji Burjorji Bharoocha 68 and carry through the transaction, but that Dwarkadas had refused to mortgage. The Courts in India dismissed the appellants suit. The material passage in the judgment of the High Court is as follows — " It appears to us that no reasonable business man in the plaintiffs position can possibly have supposed that a loan broker however wealthy would promise to pay out of his clients money 1 ½ lacs of rupees except upon condition of some security being obtained for the lender of the money. As between business men like plaintiff and defendant dealing with a tottering financier like Dwarkadas Dharamsey any arrangement for an unconditional guarantee such as the plaintiff now asserts is incredible. As between business men like plaintiff and defendant dealing with a tottering financier like Dwarkadas Dharamsey any arrangement for an unconditional guarantee such as the plaintiff now asserts is incredible. It appears to us that the words I bind myself to you to procure a loan within two weeks of Rs.11 lacs on the first mortgage of the mills and to pay you thereout are correctly paraphrased in paragraph 5 of the defendants written statement, where he says that all he had undertaken to do was to procure the lending of 11 lacs if a first mortgage of the mill was given and to pay thereout 1 ½ lacs to the plaintiff. "It was suggested by the plaintiffs counsel that if defendant had offered a written guarantee in these terms the plaintiff would never have advanced the money. We do not think that this would have been the result, for the plaintiff had no doubt of Dwarkadas Dharamseys ability or willingness to mortgage the mills. His only doubt was (as he himself says) whether Dwarkadas Dharamsey could induce any one to lend him the eleven lacs he wanted on the mills. On the other hand looking at the case from the point of view of the defendant, if he had been asked to promise repayment of the plaintiffs money, mortgage or no mortgage, security or no security, we cannot doubt that he would have refused." Sir A. Cripps, K.C., and Lowndes, for the appellants, contended that on the true construction of the agreement sued upon the respondent promised unconditionally to repay the loan out of a loan to be procured by him. It was not a promise conditional upon Dwarkadas executing a mortgage of the mills, but an absolute promise made to induce the appellants to advance their money, on the faith of which the appellants acted. The Indian Contract Act, s. 32, therefore did not apply, and if it did s. 65 validated the appellants claim. Sir R. Finlay, K.C., De Gruyther, K.C., and Arthur Grey, for the respondent, contended that the Courts below were right in holding that his undertaking to pay was conditional and contingent on the transaction of mortgage being given effect to and carried out by the loan being taken. The contingency failed by the act of Dwarkadas and it thereby became impossible for the respondent to fulfil his undertaking. The contingency failed by the act of Dwarkadas and it thereby became impossible for the respondent to fulfil his undertaking. The respondent discovered that the property had already been mortgaged to one Shiolla Motilal, who was unwilling to be redeemed but was willing to make a further advance. The respondents contract was void under the Indian Contract Act, ss. 32 and 34. Reference was made to Chandler v. Webster ([ 1904] 1 K B. 493.), Krell v. Henry ([ 1903] 2 K B. 740.), Taylor v. Caldwell (( 1863) 3 B. & S. 826 ; 32 L. J. (Q.B.) 164.), and Jackson v. Union Marine Insurance Co. (( 1873) L. R. 8 C. P. 572, 581.), where it was held that a contract made under one set of circumstances which had become impossible could not be applied to other circumstances which could not have been in contemplation when the contract was made. Counsel for the appellants were not heard in reply. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The question in this case turns simply upon the construction of a very short document. It is addressed to the appellants, and is in these words " In consideration of your having at my request acceded to the proposal of the secre taries, treasurers, and agents of the Tricumdas Mills 7 Law. Rep. 39 Ind. App. 152 ( 1911- 1912) Vissanji, Sons & C o. V. Shapurji Burjorji Bharoocha 69 Company, Limited, to advance to the mills a sum of rupees one lac and fifty thousand, I hereby bind myself to you to procure a loan within two weeks of rupees eleven lacs on the first mortgage of the mills block property, and to pay to you thereout the said sum of rupees one lac and fifty thousand agreed to be advanced by you to the mills." Everybody is now agreed that what took place after the execution of that document can have no bearing on the construction of it. All that the admitted evidence shews is that the appellants wanted some real and substantial security for their advance. They advanced the lakh and a half, and the only question is, what is the meaning of this guarantee ? All that the admitted evidence shews is that the appellants wanted some real and substantial security for their advance. They advanced the lakh and a half, and the only question is, what is the meaning of this guarantee ? Does it mean that all that the respondent undertook was that he would find somebody willing to lend eleven lakhs on a first mortgage of the mill and that he was to do nothing further except, if that arrangement was carried through, he would pay to the appellant out of the loan a lakh and a half ? Various constructions have been suggested. The one which Sir Robert Finlay, for the respondent, finally adopted is the one on which the judges in the Appeal Court relied. They say they agree with the respondent when he says " that all he has undertaken to do was to procure the lending of eleven lakhs if a first mortgage of the mill was given, and to pay thereout rupees 1 ½ lakhs to the plaintiff." Their Lordships read the document not in that sense at all, but as a substantial undertaking that a loan should be procured, and that out of that loan this sum of Rs. 1,50,000 should be repaid. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, and that a decree should be made in favour of the appellants. Of course the respondent will pay the costs of this appeal, and the costs below.