''Cutter v Powell'' (1795) 101 ER 573 is an
English contract law
English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countrie ...
case, concerning substantial
performance of a contract.
Facts
Cutter agreed he would sail with Powell from
Kingston, Jamaica to
Liverpool
Liverpool is a City status in the United Kingdom, city and metropolitan borough in Merseyside, England. With a population of in 2019, it is the List of English districts by population, 10th largest English district by population and its E ...
, England. The contractual note read as follows.
“Ten days after the ship ''Governor Parry'', myself master, arrives at Liverpool
Liverpool is a City status in the United Kingdom, city and metropolitan borough in Merseyside, England. With a population of in 2019, it is the List of English districts by population, 10th largest English district by population and its E ...
, I promise to pay to Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues and does his duty as second mate in the said ship from hence to the port of Liverpool. Kingston, July 31st, 1793.”
Cutter died after seven weeks. It was a ten-week voyage. The ship left on 2 August, Cutter died on 20 September and the ship arrived on 9 October. The ship captain refused to pay any wages at all. Mrs Cutter sued to recover the wages for the part of the journey that the husband had survived.
It was apparent that the usual wages of a second mate of a ship on such a voyage was four pounds per month: but when seamen are shipped by the run from Jamaica to England, a gross sum was usually given. The usual length of a voyage from Jamaica to Liverpool was about eight weeks.
Submissions
The arguments for the plaintiff, Mrs Cutter, went as follows.
Arguments on behalf of the defendant.
Judgment
The Court of King's Bench held that Cutter was not entitled to wages because he had not completed the journey. Part performance was no performance at all.
Lord Kenyon CJ led with his judgment.
Ashhurst J concurred, emphasising that the contract was entire and that completion was a
condition precedent A condition precedent is an event or state of affairs that is required before something else will occur. In contract law, a condition precedent is an event which must occur, unless its non-occurrence is excused, before performance under a contract b ...
to the obligation to pay.
Grose J concurred.
Lawrence J concurred.
See also
*''
Sumpter v Hedges
''Sumpter v Hedges'' 8981 QB 673 is an English contract law case, concerning substantial performance of a contract and restitution for unjust enrichment.
Facts
Mr Sumpter was a builder. He had a contract to build two houses and stables for Mr ...
''
898
__NOTOC__
Year 898 ( DCCCXCVIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place Europe
* January 1 – King Odo I (or Eudes) dies at La Fère (Northern France) af ...
1 QB 673
*''
Britton v. Turner
''Britton v. Turner'', 6 N.H. 481 (1834), was a case decided by the Supreme Court of New Hampshire that marked one of the first appearances of the contract law
A contract is a legally enforceable agreement between two or more parties that ...
'', 6 N.H. 481 (1834) an employee who left work on a farm after six months, but had contracted to be paid $120 at the end of one year, was entitled to receive some payment ($95) even though the contract was not completed.
*''
Jacob & Youngs v. Kent'', 230 N.Y. 239 (1921) a NY Court of Appeal case by
Cardozo J
Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American lawyer and jurist who served on the New York Court of Appeals from 1914 to 1932 and as an Associate Justice of the Supreme Court of the United States from 1932 until his deat ...
.
*''
Hoenig v Isaacs
''Hoenig v Isaacs'' Sir Lionel Leach, in finding there had been substantial compliance. He noted that each case turns on the construction of the contract. Where there is substantial performance of the contract, then money must be paid. The wor ...
''
EWCA Civ 6 2 All ER 176
*''Bolton v Mahadeva">952
EWCA Civ 6 2 All ER 176
*''Bolton v Mahadeva'' [1972] 2 All ER 1322
*''Wilusynski v London Borough of Tower Hamlets'' [1989] ICR 493, Nicholls LJ holding no "substantial performance" by - and no pay whatsoever for - a council worker on industrial action who did everything but answer enquiries from councillors.
Notes
{{reflist, 2
External links
Judgment on BAILII
English unjust enrichment case law
English termination case law
1795 in British law
1795 in case law
Court of King's Bench (England) cases