Canada Law Book Co. v. Boston Book Co, (1922) 64 SCR 182

Supreme Court of Canada

Canada Law Book Co. v. Boston Book Co., 64 S.C.R. 182

Date: 1922-05-02

The Canada Law Book Company (Defendant) Appellant;

and

The Boston Book Company (Plaintiff) Respondent.

1922: March 8, 9; 1922: May 2.

Present: Duff, Anglin, Brodeur and Mignault JJ. and Cassels J. ad hoc.

ON APPEAL FROM THE APPELLANT DIVISION OF THE SUPREME COURT OF ONTARIO.

Contract—Purchase of books—‘Entire set—Price fixed per volume—150 vols. more or less—Estimate—‘Representation—Warranty—Breach—Action for price—Counterclaim for damages.

The B.B. Co. executed a contract agreeing to give the C.L.B. Co. the sole Canadian market for sale of the English Reports Reprint to be published in Edinburgh and of which it had the sole rights for the United States and Canada. The C.L.B. Co. by said contract agreed to buy a certain number of copies “of each volume of the set (150 vols. more or less)” at a price named per vol. The publishers of the work had issued a prospectus which was given to the C.L.B. Co. stating that the set would consist of about 150 vols. of about 1,500 pages each and the latter company solicited subscriptions on that basis. Most of the volumes after the first few contained considerably less than 1,500 pages and when 150 had been published it was seen that to complete the work over forty more would be necessary. The C.L.B. Co. refused payment for the following four volumes published and, in an action by the B.B. Co. for the price, counterclaimed in damages for breach of the contract.

Held, reversing the judgment of the Appellate Division (48 Ont. L.R. 238) which affirmed that on the trial (44 Ont. L.R. 529) that the C.L.B. Co. did not contract to purchase the entire set of whatever number of volumes it might consist but only to take 150 vols., more or less; that the contract must be construed in view of the statement in the prospectus as to the extent of the work; that the number of volumes and contents of each to be reprinted were known and the extent of the work to contain the reprint could be calculated

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within very narrow limits; therefore the term in the contract sued on that it would consist of “150 vols., more or less” was not an estimate but part of the description of the subject matter and the phrase “more or less” would permit only a slight increase over the 150 vols. and the excess of 40 vols. or more is so unreasonable as to constitute a breach of the contract.

Held also, that the C.L.B. Co. is entitled to claim damages by counterclaim to the action of the B.B. Co. and not obliged to wait until the entire work is published.

APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario[1] affirming the judgment at the trial in favour of the plaintiff[2].

The material facts of this case are stated in the head-note. The Boston Book Co. sued to recover the amount due for the stipulated number of copies of volumes 151 to 154 inclusively. The defendant denied any liability therefor and counterclaimed in damages for breach of the contract to supply the whole set in about 150 volumes.

The trial Judge gave judgment for the plaintiff for the amount claimed and dismissed the counter-claim². His judgment was affirmed by the appellate Division¹.

Lafleur K.C. and Harding K.C., for the appellant. The prospectus was a part of the contract and contained its material terms. The court must consider it in order to be in the same position as the parties were when the contract was made. See McLeod v. McNab[3]; Chapman v. Bluck[4].

The statement in the prospectus amounts to a warranty. The parties did not intend that the written agreement should contain all the terms of the contract and the warranty does not contradict any of its terms. See Benjamin on Sale (6 ed.) pages 663 and 672.

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It was possible to ascertain with almost absolute precision the extent of the contemplated work so that the number of volumes mentioned in the contract cannot be a mere estimate and the expression “more or less” admits of only a slight variation. Renter Co. v. Sala[5].

The damages are capable of being ascertained and the defendant can assert its claim in this action. Findlay v. Howard[6].

Bicknell K.C. and Gordon, for the respondent. The subject of the contract was a work of an extent that could not be ascertained in advance. Therefore the words “150 volumes more or less” were words of expectation and estimate only Tancred, Arrol & Co. v. Steel Co. of Scotland[7]; In re Harrison[8].

The words “more or less” should be given the widest interpretation in a case of this kind Eckert v. London Electric Ry. Co.[9] and cases cited above.

These words cannot be construed as a warranty since, in a matter of such importance, specific terms of warranty would be necessary. Heilbut, Symons & Co. VoBuckleton[10].

The defendant has for many years been aware of the terms of the prospectus and has accepted and paid for the books issued. It has, therefore, elected to affirm the contract and lost its right to rescind; Clough v. London and North Western Ry. Co.[11], Erlanger v. New Sombrero Phosphate Co.[12]; In re Cape Breton Co.[13] per Pearson J. at page 229.

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DUFF J.—The decisive point in the controversy is that raised by the question, what was the subject matter of the contract—or rather that branch of the contract which in effect is a contract of sale? The respondents advance the view that they agreed to supply the appellants with sets of reports as they were published and only as they were published by Greene & Sons. The appellants, on the other hand, rest their case upon the proposition that the contract contemplated the delivery of sets, each set consisting of a number of volumes fixed within very narrow limits and each volume containing an approximately determined number of pages and each set being a complete reprint of certain specified law reports.

The document of the 5th day of June, 1900, is one which can only be fully understood by one who is informed of the circumstances in which it was executed. The phrase “English Reports Reprint to be published by Wm. Greene & Sons, of Edinburgh, Scotland, first volume to appear about September 1st”

points to something which was known to and in contemplation of both parties to the contract and with reference to which they contracted; and in order to construe and apply the contract you must ascertain what

this was. Lord Davey, whose words I have been quoting, (Bank of New Zealand v. Simpson[14] proceeds to say

“extrinsic evidence is always admissible not to contradict or vary the contract but to apply it to the facts which the parties had in their minds and were negotiating about.

It will be very useful also to bear in mind the words of Lord Haldane in Charrington & Co. v. Wooder[15]. Where, says Lord Haldane,

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the description of the subject matter is susceptible of more than one interpretation, evidence is admissible to shew what were the facts to which the contract relates. If there are circumstances which the parties must be taken to have had in view when entering into the contract it is necessary that the court which construes the contract should have these circumstances before it.

There are certain circumstances which the parties must be taken to have had in view. Mr. Soule had in his possession a copy of the circular of Greene & Sons and this circular gave a list of the reports which were to be republished. It stated explicitly that all the reports mentioned could be republished in about 150 volumes of about 1,500 pages each.

It is indisputable that this estimate was one which could be subjected to rigorous tests; the precise works which were to be reproduced were known and the number of volumes required into which the whole series would run could be determined subject to a very narrow margin of error.

The appellants moreover, as well as the respondents, were publishers and booksellers and were, of course, known to be purchasing with a view to re-selling to their customers, the legal profession in Canada. It was quite well understood that they would follow the usual procedure in such a case. That is to say they would issue an advertisement or prospectus inviting subscriptions and inviting these subscriptions upon the faith of the essential terms, at all events, of the prospectus of Greene & Sons—that a set of the reprint would contain the reports specified and that it would consist of 150 volumes of about 1,500 pages each. These were essential terms of the prospectus of Greene & Sons because on the basis of this prospectus subscriptions were being invited by them at the rate of a named price per volume and the total cost of the work to the subscriber would necessarily depend up on the number

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of volumes he was agreeing to buy; and, as this was a matter easily ascertainable by the publishers within, as I have said, very narrow limits the publishers’ estimate, so called, would naturally be treated by the publisher and subscriber alike as within such limits, determining the number of volumes which the subscriber would ultimately be called upon topayfor. Precisely the same considerations would govern the relations between the Canada Law Book Company and its customers. A proposed subscriber’s first question would be a question concerning the number of volumes and it was necessary that the appellants should be in a position to give such assurance upon this point as subscribers would naturally exact. The Boston Book Company dealing with Greene & Sons would expect from Greene & Sons, just as the individual subscribers would expect from the Canada Law Book Co., a contractual stipulation upon this point and that such a contractual stipulation had been or would be procured by the Boston Book Company from Greene & Sons must, I think, be taken to have been one of the assumptions upon which Mr. Cromarty and Mr. Soule proceeded in concluding their arrangements.

All these things, the character of the publication which Greene & Sons were offering to the public as the English Reports Reprint; the fact that the exact identity of the publications to be reproduced was known and the precise number of pages of a given size required to reproduce them could be ascertained; the fact that the appellants and the respondents were themselves publishers and dealers in books and fully understood this; the fact that the publication was being offered at a fixed price per volume, and consequently that the ascertainment of the number of volumes in each set as one of the conditions of the

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subscribers’ contract within such limits as aforesaid was a point on which the appellants must be prepared for the purpose of securing subscriptions to enter into explicit engagements; these facts not only may but must be considered in construing the document signed by Mr. Soule and Mr. Cromarty for the purpose of ascertaining what was the subject matter of the sale.

Reading the document in light of the facts mentioned, two things appear to me to be almost manifest, 1st, that the English Reports Reprint means a reprint of all reports mentioned in Greene & Sons circular; and 2nd, a reprint embodied in about 150 volumes of about 1,500 pages each. In other words, that the parenthetical language “150 volumes more or less” is part of the description of the thing sold.

The phrase “more or less” has of course no fixed quantitative significance. Its precise import and bearing upon the meaning and effect of any instrument in which it occurs must depend upon the subject matter and circumstances of the transaction. It is questionable perhaps whether decided cases ascribing to it a precise effect in particular circumstances can safely be taken as a guide in other cases. It has sometimes been treated as manifesting simply an intention that the figure given should be regarded as an estimate only, e.g. in Cockerell v. Aucompte[16] and in other cases it has been considered to denote that the quantitative expression which it qualifies though not mathematically exact is accepted as expressing an approximation to the number or other magnitude in relation to which the parties are contracting as closely as the particular business in a practica

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way admits of, e.g., in Finch v. Zenith Co.[17]. Here this phrase is to be construed in light of the considerations already mentioned and those considerations seem to give the key to its meaning. In a sense the number given—150—is an estimate but it is an estimate given by experts in possession of all the data required for the purpose of arriving at a judgment almost exact as to the number of volumes required. This number must necessarily, in some degree, be matter of uncertainty because it was thought, no doubt for very good reasons, desirable that in every case a volume of the reprint should contain only completed volumes of the republished reports, a condition necessarily resulting, no doubt, in some disparity in the size of different volumes of the reprint; and other circumstances also may have contributed to the uncertainty on this point. Some latitude therefore must be allowed as to the number of volumes which each set was to contain, but to that latitude strictly ascertainable limits might be set; and bearing in mind the fact the appellants had no contractual relations with Greene & Sons while it was quite understood that the figure given (150) must be the basis of contractual stipulations by the appellants in the agreements with their customers, I think these words “more or less” must be considered to contemplate only such departure from the estimate (of 150) as should be regarded as reasonably arising from exigencies of publication which in the circumstances might naturally be unforeseen or overlooked; and that the figure given (subject to such reasonable degree of inexactitude as would not be incompatible with the skill and care to be expected in such circumstances) was accepted as part of the description of the thing they were dealing with.

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The law applicable in such circumstances is settled. Where goods are sold by description there is an implied condition that they shall correspond with the description; Bowes v. Shand[18]; and such implied conditions go to the root of the contract and if the appellants when delivery of the first volume was tendered had been informed that the work was to be in sets of 200 instead of 150 volumes they could have declined to accept the book and would also have had a right of action for breach of an implied contract that the designated reports would be contained in a set of about 150 volumes. Bowes v. Shand¹⁸.

Having accepted the volumes delivered the right to reject is lost, but they have a cause of action as upon a warranty that the work as delivered would comply with the description in the contract. This right the appellants are entitled to assert in an independent action; and they are entitled also in the action brought by the respondents to set up in diminution of, or as a complete answer to, the respondents’ claim the loss they have suffered by reason of the difference in value between the thing agreed to be sold and that delivered; Mondel v. Steel[19]. This reduction or extinction of price is not by way of set off, and is regarded as satisfaction only pro tanto (1) (per Parke B. at pages 870 and 871); and consequently damages in excess of the amount so allowed can be recovered in another action or by counter-claim. In this case if this exceed the amount sued for the action should be dismissed with costs. There should be a reference to ascertain the damages and further consideration and costs (except costs of the appeals which the appellants should have) should be reserved.

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ANGLIN J.—I agree with the view which prevailed in the provincial courts that what we have to deal with in this case is not an agreement for an agency, but a contract for the sale and purchase of goods. The parties put that contract in writing, in June 1900, in the following terms:—

The Canada Law Book Company agree to take two hundred copies of each volume of the set (one hundred and fifty volumes more or less) at a price of ten shillings and sixpence (10s. 6d.) per volume, bound in half roan, f.o.b. Edinburgh; payment to be made by the Canada Law Book Company on each volume three months after shipment of the volume from Edinburgh.

The “two hundred copies” was a few months later changed by mutual consent to 150 copies and was eventually fixed at 175 copies.

The “set” had reached 160 volumes at the time of the trial; 164 volumes have now been delivered; and it seems reasonable to expect that when complete the “set” will comprise from 187 to 195 volumes. The vendor sues for the price of volumes nos. 151, 152, 153 and 154. The purchaser contests this demand and counterclaims for $20,000 as damages for breach of contract, and for specific performance.

The question presented is whether the words “one hundred and fifty volumes more or less” were introduced into the contract as mere words of estimate so that the purchaser bound itself to take and pay for the entire “set” at the price of 10s. 6d. per volume, however great the number of volumes it should be made to comprise, or whether these words constituted a part of the description of the subject-matter of the contract, non-fulfilment of which, as a “condition” would entitle the purchaser to reject the goods and repudiate all liability, or, in the alternative, taking the goods, to recover damages as for breach of a warranty.

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The law on this subject is fully discussed in the judgment of the late Lord Justice Fletcher‑Moulton in Wallis, Son & Wells v. Pratt & Haynes[20], unanimously and wholly approved by the House of Lords[21]

I say not “for a breach of warranty”, but “as for a breach of warranty,” because, after a careful study of the evidence, I agree with the learned judges who have held that intention on the part of the vendor to enter into an undertaking (as to the number of volumes to be comprised in the set) collateral to the express object of the contract (Chanter v. Hopkins[22] has not been shewn. Heilbut, Symons v. Buckleton[23]. With very great respect, the effort to make of this case one of warranty collateral to the sale from the outset, if I may so put it, seems to have introduced confusion of thought and led to misconception of the true issue. If the statement of the number of volumes imports contractual obligation on the part of the vendor it is because it forms a part of the description of the goods sold. Was that the purpose of its insertion in the contract? The words in themselves are susceptible of being so regarded or of being treated merely as an estimate. In which sense they were in fact used must be determined by the context, if it affords the necessary cue, and, if not, by consideration of

the circumstances and the grounds upon which the contract was entered into

(Beal on Legal Interpretation, 2nd ed. p. 123) and the object with which the words in question were inserted. Hart v. Standard Marine Ins. Co.[24].

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While the “set” is described in an earlier clause of the contract as “the English Reports Reprint,” to be published by William Green & Sons of Edinburgh, it is common ground that in order to have an adequate description of the subject-matter of the sale recourse must be had to a prospectus issued by the Edinburgh firm which the vendor (The Boston Book Company) placed in the hands of the purchaser (The Canada Law Book Company) before the contract was made. In its statement of claim the vendor says that its contract with the defendant

was entered into with reference to this prospectus, which is made a part of the said contract, and to which the plaintiff craves leave to refer at the trial of this action.

Although the truth of this allegation, because not admitted in the statement of defence, was in issue under the Ontario practice, the evidence fully warrants the conclusion that the subject‑matter of the contract sued upon was the set of books described in the Edinburgh prospectus. The learned trial judge found that

this circular was before the parties to this action as the foundation of the contract made, and may, I think, be referred to as shewing what was meant by the English reprint referred to in the agreement.

Extraneous evidence is admissible (even in the case of a memorandum required to satisfy the Statutes of Frauds)

of every material fact which will enable the Court to ascertain the nature and qualities of the subject-matter of the instrument,

or, in other words, to understand the subject-matter of the contract. Bank of New Zealand v. Simpson[25]. The description of the subject-matter given in the heading of the prospectus is

a complete re-issue of all the decisions of all the English Courts from the earliest times to 1865, in one uniform set of 150 volumes, forming “The English Reports,” 1,300 to 1865.

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In the body of the prospectus was the following paragraph:—

With the object of proving whether it were possible to print such an enormous mass of material in a good readable type and in a series of volumes which could be accommodated in an ordinary small bookcase, careful calculations and experiments in paper and printing have been made. It has been found as the result of these * * * that a complete set of all the decisions, from the earliest times to 1865, can be given to the profession in about 150 volumes of 1,500 pages each, * * *. The set when complete will occupy actually less room than a set of the official Law Reports from 1865 to date. How this desirable result will be attained is shewn on the specimen pages enclosed.

The accompanying specimen pages, printed as part of the prospectus, exhibited a copy of the original of page 127 of volume IX of Clark & Finnelly’s House of Lords Reports and, opposite to it, a proposed page of the reprint containing all of pages 127 and 128 and most of page 129 of the Clark & Finnelly volume. In a note, printed between these two specimen pages, it is stated that

the re-issue will be printed in volumes of about 1,500 pages each. * * * By these means from 6 to 8 volumes of the Reports will be condensed into one volume of the “English Reports”, of the handy size shewn on the other side.

On another page of the prospectus occurs the following:—

The number of volumes in each series will be approximately as follows:—

House of Lords.....................................................................................	11	volumes
Privy Council.........................................................................................	6	“
Chancery...............................................................................................	23	“
King’s and Queen’s Bench..................................................................	32	“
Rolls Court.............................................................................................	7	“
Vice Chancellor’s Court.......................................................................	13	“
Common Pleas.....................................................................................	19	“
Exchequer.............................................................................................	12	“
Ecclesiastical, Admiralty and Probate and Divorce.........................	8	“
Bankruptcy and Mercantile Cases.....................................................	5	“
Crown Cases........................................................................................	3	“
Nisi Prius...............................................................................................	6	“
Bail Courts............................................................................................	5	“

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It requires little argument to prove that a series containing all these reports in a moderate number of well printed volumes at one-eighth of their present cost and occupying only about one-tenth of their shelf-room must certainly become for all time coming the accepted edition for general use and reference.

The subject-matter of the contract in my opinion was not a set of “the English Reports” to comprise an indefinite number of volumes—merely estimated at 150—but a set of the English Reports to consist of “one hundred and fifty volumes more or less”; and the vendor represented that its undertaking would be carried out by making each volume contain about 1,500 pages printed as indicated in the specimen page submitted.

The plaintiffs thus state the purview of the contract in their reply:

According to the said contract * * * the defendant agreed to purchase from the plaintiff company one hundred and fifty copies of each volume of the set of English Reports reprinted, each set to contain one hundred and fifty volumes more or less, and each volume to contain fifteen hundred pages, more or less, for the price mentioned, and the plaintiff denies that there was any agreement that each volume of said sets was to contain at least fifteen hundred pages.

Except, perhaps, that the statement of the paginal content of each volume was rather a representation as to the intended method of carrying out the stipulation as to the number of volumes than itself a term of the actual agreement, this is, in my opinion, a correct statement of the contract between the parties; and upon it the defendant is, I think, entitled to maintain its counter-claim.

Much was made in argument of the fact that the price stipulated for in the contract is not a lump sum, but so much per volume. But the volume for which the fixed price was agreed to be paid was a volume not of indefinite size but to contain “about”, or “approximately,” 1,500 pages, or, at least, a number of pages

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sufficient to permit of the whole “set” being completed in about 150 volumes, the size of the pages, the number of lines in each and the style of type being specified. If the very different view of the contract now contended for on behalf of the vendor were correct the defendant would have been bound to accept as a fulfilment of it volumes of say 200 pages each and to pay for a set comprising not 150 volumes or thereabouts, but upwards of 1,000 volumes, should the publishers see fit to extend the series to that extent. The suggestion that the parties intended any such contract is simply preposterous.

The evidence leaves no room for doubt that had the set been published in uniform volumes of about 1,500 pages each, with pages of the size and printed with the type shewn in the specimen exhibited in the prospectus, the entire set would have been completed in the “150 volumes more or less,’ contracted for. What the defendant bought and had a right to expect to receive was uniform sets of “150 volumes more or less” of “about 1,500 pages each”. The number of volumes was in my opinion an essential part of the description of the goods bought.

I extract the following passage from the judgment of Mr. Justice Riddell:—

The first matter calling for comment is that in 1902 the publishers, whose prospectus was for the publication of the Privy Council Reports in 6 volumes, after publishing volumes 12-17 of the series, and thereby completing the Privy Council Reports ordinarily referred to, added three volumes, 18-20, of Indian Appeals, not, it is said, contemplated in the original proposition. This, the plaintiff says, was due to Stevens & Sons, whose name appears with Green & Sons as publishers, owning the copyright, and that they were unwisely grasping in extending these additional volumes to three reprint books, when they could easily have been put into two at most, or even by mamtaining the size of the early volumes consistently these additions could have been so combined as to make only one extra volume beyond announcement (letter May

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21st, 1902). When we see that volumes 12-17 have an average of 820 pages only, 4,960 pages in all, and volumes 18, 19 and 20 have 999, 1,099, and 926 respectively, an average of 1,008 pages, 3,024 pages in all, the truth of the statement just referred to is manifest. The total paging of the Privy Council Reports is 7,984 less than 6 volumes of 1,500 each.

Six volumes containing an average of 820 pages each certainly did not evince a genuine effort to produce a set of uniform volumes containing about 1,500 pages each. Volume 16 contains 837 pages; volume 17, 596 pages, the two volumes together making 1,433 pages, or less than the proposed 1,500 of a single volume. It is difficult to conceive of any honest explanation for not including these two books, which contain Moore’s (N.S.) Privy Council Reports, vols. 3-6 and 7-9 respectively, in one volume. In the absence of the publisher I withhold further comment.

Had the complete set as actually published been all tendered for delivery at once the defendant, in my opinion, would have been entitled to reject it as not corresponding to the particular description under which it was sold. But the books had, as was contemplated by the parties, been resold by the defendant to its subscribers before, or immediately upon, the contract being made with the plaintiff. The volumes were delivered not in a complete set but as each came from the press. The first six volumes contained, respectively 1,606, 1,335, 1,491, 1,403, 1,439 and 1,619 pages—or an average of 1,482 pages apiece. There was no substantial ground for complaint up to this point. The six volumes averaged “approximately” or “about” the 1,500 pages each mentioned in the prospectus. By the delivery of these six volumes to the subscribers the defendant was fully committed to the enterprise and its opportunity for rescission was gone forever.

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It retained, however, its right to recover damages for non-fulfilment of the contract in the subsequent deliveries. That right it preserved, so far as may have been necessary, by frequent letters of protest. It is perhaps worthy of note in passing that one of those letters elicited from the plaintiff, on the 13th of November, 1902, the statement:—

I think Green (the Scotch publisher) said that he had found that volumes of the average of 1,200 pages would bring the whole series of the reprint into 150 volumes.

It is argued, however, by the plaintiff that the words “more or less”, appended to the words “one hundred and fifty volumes” in the contract, must be read in the broadest sense and provide a margin wide enough to cover the extra 37-45 volumes which it now seems reasonable to anticipate will be required to complete the set. Indeed, as Mr. Justice Riddell observes, the attitude of the plaintiff throughout, as indicated in the correspondence and the pleadings, has been that “the number of volumes is not stated absolutely but qualifiedly.” It has not treated the “one hundred and fifty volumes more or less” as the mere estimate for which it now seeks to have it taken, but rather as importing merely the right to exceed 150 volumes by such margin as the words “more or less” might afford.

Regard being had to all the circumstances, and more especially to the terms of the prospectus, I find in the addition of the words “more or less’ an indication not that a mere estimate was imported by the statement in the contract of the projected number of volumes, but rather that the plaintiff always recognized in the words “one hundred and fifty volumes” an essential part of the description of the subject-matter of the sale and accordingly qualified what would otherwise have been an absolute undertaking that the number of

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volumes should not exceed 150. The facts in evidence shew that the governing words of the description are those specifying the number of volumes. Benjamin on Sale (9 ed.) 803, 813.

I am, with great respect, unable to accept the view that the defendant’s counter-claim should be rejected as premature. There may not have been a breach of the plaintiff’s contract when it delivered the first volumes containing substantially less than “about 1,500 pages”. For some time it was possible that the deficiency might be remedied by making subsequent volumes larger. That possibility, however, is long since past, and the breach was complete when it ceased to exist. There is no reason why, applying the principle of Mondel v. Steel[26] the damages for such breach already sustained should not be applied, as far as the value of the “set” is thereby diminished, pro tanto in diminution or extinction of the contract price, so far as unpaid—no reason why the defendant should be compelled to pay for the volumes already delivered in excess of “150 volumes more or less”, and for those yet to be delivered, and be obliged to take the chance of subsequent recoupment on its counterclaim. Government of Newfoundland v. Newfoundland Railway Co.[27].

The defendant has asserted that counterclaim for the whole of the damages it has sustained and will sustain by reason of the plaintiff’s breach of contract. It can probably now be ascertained with at least approximate exactness how many additional volumes will be required to complete the “set”. In arriving at this figure care must of course be taken that it is not put higher than will be entirely fair to the plaintiff.

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I agree with Mr. Justice Riddell’s view, however, that the damages should now be assessed once for all and that the proper course to adopt for this purpose is the reference which he suggests. A new trial seems to me to be unnecessary under the Ontario practice. (Ont. J.A., R.S.O., c. 56, ss. 64, 65.)

What number of volumes in excess of 150 the plaintiff may claim it was within the contemplation of the parties might be comprised in the “set” without breach of contract, by virtue of the margin provided for by the words “more or less”, must still be determined. No doubt these words sometimes have the effect of rendering the statement of quantity in the contract nothing more than an estimate, as was held in McLay v. Perry[28]; but see McConnell v. Murphy[29]. Here, having regard to the circumstances under which, and especially to the terms of the prospectus “with reference to which the contract was entered into,” consideration of which is vital to its construction (Morris v. Levison[30], it is impossible to give them any such effect. The materiality of the number of volumes is too apparent. The number of volumes requisite to furnish a complete reprint, (the size of the pages, number of Unes to each page, and type being specified) was susceptible of precise mathematical determination; and the prospectus stated that it had been so determined. The case then was not one for an estimate at all. The only element of uncertainty was due to the desirability that the whole of each of the original volumes should be found in a single volume of the reprint—that an original volume should not be split, or divided, so that part of it would appear in one volume and the rest in the succeeding

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volume of the reprint. This might necessitate some of the volumes of the latter falling slightly short of, and others slightly exceeding the average of 1,500 pages projected. Hence the statement in the prospectus that the volumes would each contain “approximately” or “about” 1,500 pages and the contractual provision that the set would number “150 volumes more or less”. The words “more or less”—equivalent to “about”—are introduced in such a case.

for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight.

Brawley v. United States[31]; British Whig Publishing Co. v. Eddy[32]. “More or less’ are words of general import and the excess or deficiency, as the case may be, which they cover bears a very small proportion to the amount named. Cross v. Eglin[33]. They provide “a margin for a moderate excess or diminution of the quantity.” Reuter v. Sala[34].

In Morris v. Levison[35] 3 per cent either way was, under the circumstances, held to be a fair allowance under the word “about”. In “The Resolven”[36] a margin of 5 per cent was allowed under the word “thereabouts.” No doubt any margin fixed must be “more or less” arbitrary. Having regard to the terms of the prospectus, however, as affording some indication of what the parties must have had it in mind to provide for, and to the precision with which the number of volumes requisite to complete the set could have been, and was in fact, stated to have been ascertained, I think an

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allowance affording “a reasonable latitude” must be confined to such excess as suitable arrangement of the matter in volumes and trifling error in calculation, practically unavoidable, might entail.

I would allow the appeal with costs here and in the Appellate Division. There should be a reference to the master to ascertain any balance of purchase money due the plaintiff and the amount of the defendants’ damages and the balance due either party, after making set-off.

Other costs and further directions should be referred to the Supreme Court of Ontario.

BRODEUK J.—I concur with my brother Sir Walter Cassels.

MIGNAULT J.—I concur with my brother Anglin J.

CASSELS J.—I have given the best consideration that I am capable of to the appeal argued before this court on the 9th day of March, 1922. With all due respect to the opinions of a majority of the judges who heard the case at the trial and on the appeal, I am unable to arrive at the conclusions they have come to. With some exceptions of a minor character, which I will subsequently deal with, I am of opinion that the view pronounced by Mr. Justice Riddell is the correct one, that there was a warranty on the part of the Boston Book Company, and that the Canada Law Book Company, Limited, were entitled to have damages for a breach of such warranty.

The facts are so fully dealt with in the various judgments under review that it is unnecessary for me to repeat them.

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I agree with the view arrived at by Mr. Justice Riddell, that the contract between the Boston Book Company and the Canada Law Book Company is a contract of sale and purchase.

In the plaintiff’s statement of claim, after referring to the two contracts of the 5th June, 1900, and the 19th November, 1900, the plaintiff states as follows:—

At the time the said agreements were entered into the defendant had in its possession a prospectus issued by William Green & Sons stating in general terms their plans for the issue of the English Reports Reprint and the contract between the plaintiff and the defendant was entered into with reference to this prospectus which was made a part of the said contract and to which the plaintiff craves leave to refer at the trial of this action.

There is no privity between the Canada Law Book Company, Limited, and William Green & Sons.

In his reasons for judgment Mr. Justice Middleton is reported as stating as follows:—

In other words, the estimate of 423 volumes for the work so far as it has gone has been exceeded to the extent of 37 volumes, the publication having actually yielded 160 volumes, and if the same proportion holds good for the 27 remaining estimated volumes the actual result will be 192 or 193 volumes, an excess of result over estimate of one‑third.

It is stated in the same judgment:

As contemplated by the parties, the defendants have sold to individual customers.

It was known to the Boston Book Company, that the object of the purchase by the Canada Law Book Company, Limited, was to re-sell them to their customers.

Mr. Justice Middleton states:—

Unfortunately I have before me only the parties to this action, and cannot deal in any way with those really at fault—the publishers. Mr. Tilley presented various theories which might account for some discrepancy between the number estimated and the number produced, but slight investigation has made it plain that this will not account for more than a small fraction of the excess; and, so far, I am convinced that there has been on the part of the publishers a deliberate design to increase the number of volumes over the estimate.

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He states further:—

I can only regret that the parties did not join in an attack upon the publishers, against whom, unless more appears than was developed in the evidence in this case, a remedy ought to be found.

It seems to me that if the learned trial judge’s views are correct, and that the Boston Book Company would have a remedy over against the Edinburgh publishers, it would follow that the contract between the Boston Book Company and the Canada Law Book Company, Limited, based upon the same representations as were made by the Edinburgh company to the Boston Book Company, would entitle the Canada Law Book Company, Limited, to a remedy against the Boston Book Company for breach of their representation which practically amounts to a warranty. The Boston Book Company would have their remedy against the Edinburgh Company.

In addition to the authorities referred to by Mr. Justice Riddell, I would quote from the case of Lloyd Limited v. Sturgeon Falls Pulp Co.[37]. It is a case decided by two judges of eminence, and was very fully argued by very eminent counsel on both sides. The case arose out of a contract of sale, the facts of which are set out in the letters marked “S.T. and U” at the foot of page 164 of the report. There had been a reference under the English statute to arbitration,—the arbitrator named being the present Sir Charles Fitzpatrick. A reference was directed by the arbitrator for the decision of the English court upon a question among others of very great importance. On page 163 of the report in the Law Times, it is stated that the claimant sought to give evidence that the contract between the parties was not confined to the

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documents above referred to, S.T. and U, but that amongst the terms of the contract which they claimed was partly in writing and partly verbal, upon which they purchased the properties in question, or in the alternative amongst the matters verbally warranted to them by the defendants in consideration of which they agreed to and did enter into the contract of purchase were the following; the important one is contained on page 163, par. 8 (b):

That there was an inexhaustible supply of pulp wood upon the area comprised in the Government concession and more than the claimants operating on the scale contemplated by the parties or any other possible extension of such scale could exhaust within twenty-one years.

Bruce J states:

A warranty in a sale is not one of the essential elements of a contract, but the sale is none the less complete in the absence of a warranty—but it is a collateral undertaking forming part of the contract by the agreement, etc.

On page 166 on the top of the second column, the judge states:

We must decide that the verbal warranty alleged in paragraph 8 (b) must be regarded as a term so far collateral to the contract set out in the letters S.T.U. that oral evidence is admissible to establish the warranty.

There is no suggestion that the respondents, the Canada Law Book Company, Limited, are not sufficiently responsible for the amount awarded by the judgment of the trial judge, and in my view the proper order that should be made is to allow the appeal with costs in this court, and in the Appellate Division, with a direction that if the parties fail to agree there should be a re-trial enabling the present appellants to set up their claim for damages, and if they succeed then

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to the amount to which they may be held entitled, there should be a set-off as against the amount awarded by the judgment. See Government of Newfoundland v. Newfoundland Railway Co.[38]. The costs of the former trial and of the second trial to be in the disposition of the trial judge.

Appeal allowed with costs.

Solicitors for the appellant: Harding & Hanley.

Solicitors for the respondent: Bain, Bicknell, Macdonell & Gordon.