Sec 901

When the full performance of the contract is prevented by the interference of the party to whom the work or the goods are to be delivered, he cannot, when the contract is entire, set up imperfect performance as a defence to a suit for the price.1 The interruption is his own doing, and he must pay on a quantum meruit for what he has received;2 or be liable in damages for breach of contract.3 - A party to be benefited by the performance of a condition precedent, also, may waive such performance.4

Sec 902

When in a contract the qualifications "about," or " more or less," are used, neither party is understood as binding himself to an exact amount. A reasonable variation in bulk, under such a contract, is allowed; and what is reasonable depends upon the circumstances of the particular case.5 Thus, in an English case in 1881, A., a commission agent, advised the plaintiffs that the defendants had a quantity of old iron in their yard for sale ("about 150 tons"). The plaintiffs then wrote to the defendants as follows: " We are buyers of good wrought scrap iron, free of light and burnt iron, for our American house, and understand from Mr. A. that you have for sale about 150 tons. We can offer you 80s. per ton." After several intermediate letters relating to the place of delivery and expense of carting, the defendants wrote, " We accept your offers of the 14th and 19th inst. for old iron, viz.: 80s. per ton. We delivering alongside vessel in one of the Loudon docks. Please let us know when you can send a man here to see it weighed, and also inform us where to send it." Previously to A.'s communication to the plaintiff, he had seen a heap of iron in the yard of defendants, who were builders, and said, "You seem to have about 150 tons there." The reply was "Yes, or more." The defendants only delivered forty-four tons, that being the quantity of the heap in the yard, and the plaintiffs recovered 50l. damages in an action for short delivery. It was held by Grove and Lindley, JJ., that the words " about 150 tons," being merely words of estimate and expectation, and there being no warranty as to quantity, the defendants were not bound to deliver 150 tons. It was further ruled that the subject-matter of the contract was not 150 tons of iron, but the iron which A. had seen in the defendants' yard.1 - "More or less" is to be interpreted according to the intention. It may mean that the figure given will be only slightly varied from.2 It may imply simply a conjectural estimate.3 The question is one of intent.4 - "Say about" has been held to indicate only a conjectural estimate, and not a specific statement of quantity.5 "Not less than" indicates a minimum below which the delivery is not to go.6 - In deeds of real estate, when a farm is described by boundaries, and is stated to contain a specified number of acres, " be the same more or less," a slight discrepancy not indicating fraud or mutual mistake will not avoid the deed or sustain an action for damages.7 - " Where the sale is for a gross sum, and there are qualifying words used, such as 'more or less,' or equivalent expressions, they have been held to import that quantity does not enter into the essence of the contract."1 But the force of the words "about sixty-five acres," is "simply that while the parties do not bind themselves to the precise quantity of sixty-five acres, it imports that the actual quantity is a near approximation to that mentioned, that is to say, within a fraction of an acre, or perhaps it might cover a discrepancy of one or two acres."2 - The deficiency, in such cases, in order to justify a rescission-, must be so great as to indicate either fraud or radical mutual mistake.3 The terms "about" and " more or less" are not to be so strained as to cover more than those slight aberrations incidental to measurements of the particular class in question.4

Party preventing completion cannot charge the other with consequences of failure.

"About," "more or less," are proximate estimates.

1 Supra, sec 312, 603-4, 712, 716-7; Brown V. Kimball, 12 Vt. 617.

2 Story on Cont. sec 1330; supra, sec 712; Champlin V. Rowley, 18 Wend. 187; Updike V. Ten Broeck, 3 Vroom, 105; Wilhelm V. Caul, 2 W. & S. 26; see Lawrence V. Miller, 86 N. Y. 131.

3 Butler V. Butler, 77 N. Y. 472, cited supra, 900.

4 Supra, sec 604.

5 Benj. on Sales, 3d Am. ed. sec 691;.

Leake, 2d ed. 824; Cross V. Eglin, 2 B. & Ad. 106; Bourne V. Seymour, 16 C. B. 337; Moore V. Campbell, 10 Ex. 323; Cockerell V. Aucompte, 2 C. B. N. S. 440; Morris V. Levison, L. R. 1 C. P. D. 155: Brawley V. U. S., 96 U. S. 168; Pembroke Iron Co. V. Parsons, 5 Gray, 589; Melick V. Dayton, 34 N. J. Eq. 245; Creighton V. Comstock, 27 Oh. St. 548.

1 McLay V. Perry, 44 L. T. Rep. (N. S.) 152.

2 Harrington V. Mayor, 70 N. Y. 604.

3 Callmeyer V. Mayor, 83 N. Y. 116.

4 In Shickle V. Chouteau, 10 Mo. Ap. 241, the court held (citing Cross V. Eglin, 2 B. & Ad. 106, 110; Cabot V. Winsor, 1 Allen, 546, 550; and Patterson V. Judd, 27 Mo. 563, 567) that the words "more or less" in a contract will not cover an indefinite quantity, and will allow only a slight departure from the quantity expressed in the contract; and further (citing Morris V. Levison, 1 C. P. D. 155; Leeming V. Snaith, 16 Q. B. 275), that these words added to a given quantity expressed in a contract do not create such ambiguity in its terms as to render parol explanation admissible.

5 Gwilliin V. Daniel, 2 C. M. & R. 61; McConnel V. Murphy, L. R. 5 P. C. 203. See Robinson V. Noble, 8 Pet. 181; Pembroke Iron Co. V. Parsons, 5 Gray, 589.

6 Leeming V. Snaith, 16 Q. B. 275.

7 Galbraith V. Galbraith, 6 Watts, 112; Hershey V. Keembortz, 6 Barr, 128; Coughenour V. Stauft, 77 Penn. St. 191; Kreiter V. Bomberger, 82 Penn. St. 59.