Decided 9 June 1795 Court Court of King's Bench | End date June 9, 1795 | |
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Citation(s) (1795) 6 TR 320; 101 ER 573 Similar Bolton v Mahadeva, Hoenig v Isaacs, Sumpter v Hedges, Davis Contractors Ltd v Fare, Hochster v De La Tour | ||
Cutter v Powell (1795) 101 ER 573 is an old English contract law case, concerning substantial performance of a contract.
Contents
Facts
Mr T Cutter agreed he would sail with Powell from Kingston, Jamaica to Liverpool, England. The contractual note read as follows.
“Ten days after the ship Governor Parry, myself master, arrives at Liverpool, 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 August 2, Cutter died on September 20 and the ship arrived on October 9. 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 to the obligation to pay.
Grose J concurred.
Lawrence J concurred.