Abrahams v Herbert Reiach Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 1922 |
| Date | 1922 |
| Court | Court of Appeal |
Contract - Author and Publisher - Contract to publish - Discretion of Publisher - Breach of Contract - Measure of Damages.
A firm of publishers agreed with the authors of a series of articles to print and publish the articles, first in a magazine on certain terms, and after that in the form of a book on the terms of paying the authors 4d. for every copy of the book sold. The form and price of the book, the number of copies to be printed, and the date of the publication were left to the discretion of the publishers. They printed and published the articles in the magazine upon the agreed terms, but refused to print or publish them in the form of a book.
In an action by the authors for damages for breach of the contract:—
Held, that the defendants could not limit the damages to 4d. a copy upon the smallest number of copies that could be described as a publication of the book; but that they were bound to publish such a number as was reasonable in all the circumstances, and that the damages were to be measured by the amount the plaintiffs lost through the defendants' refusal to do this.
APPEAL from the judgment of Sankey J. in an action tried before the learned judge without a jury.
In April, 1919, the defendants, who were printers and publishers of a magazine called the Badminton Magazine, agreed with the plaintiffs to print and publish in the Badminton Magazine a series of articles on Training for Athletics written by the plaintiffs with photographic illustrations, and, on completion of the publication of the articles in the Badminton Magazine, to publish the same also as a book, and to pay the plaintiffs therefor at the rate of 1l. per 1000 words in respect of the publication in the Badminton Magazine and a royalty of 4d. a copy on each book sold.
The defendants printed and published the articles in the Badminton Magazine, but refused to publish them as a book. The plaintiffs were two celebrated athletes one of whom had run for Oxford University and the other for Cambridge. They were also members of the medical profession. They claimed damages for the loss of the benefit of the publicity they would have secured by the publication of the book and for the loss of a favourable opportunity for selling the book, the Olympic Games having been fixed to take place in August, 1920, at Antwerp. The learned judge held that they had suffered no loss under these heads.
The plaintiffs also claimed for the loss of the royalties they would have received but for the defendants' breach of contract. The defendants paid 25l. into Court with a denial of liability. On this head Sankey J. awarded the plaintiffs 500l. damages.
The defendants appealed on the ground that these damages were excessive.
Jowitt for the appellants. The damages are excessive. The obligation of a publisher who contracts to publish, and no more, is not an onerous one. He need not publish more than one edition. The relation between the author and publisher is that of a partnership at will: Reade v. BentleyF1; Warne v. RoutledgeF2; and either party may on reasonable notice retire from the joint adventure. By this contract a very wide discretion is allowed to the appellants. The number of copies to be printed and published, the form of the book, the date of publication and the price of each copy are all left to their judgment. Accordingly they would perform their obligation by offering to the public the smallest number of copies that could be called an edition or a publication of the book. The amount paid into Court represents a sale of 1500 copies. No one could deny that an offer of 1500 copies would constitute a publication of the book within the meaning of this contract. If a defendant may perform his obligations in either of two ways the plaintiff can only claim for a breach of that stipulation which is less profitable to himself and less onerous to the defendant: Cockburn v. AlexanderF3, per Maule J.; Robinson v. RobinsonF4, per Lord Cranworth L.J.; Deverill v. BurnellF5, per Bovill C.J.; Thornett v. Yuills.F6
[Maw v. JonesF7 and Baker v. Denkera...
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