Cutter v Powell
Encyclopedia
Cutter v Powell 101 ER 573 is an English contract law
case, concerning substantial performance of a contract.
to Liverpool
, England. The contractual note read as follows.
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.
Arguments on behalf of the defendant.
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.
English contract law
English contract law is a body of law regulating contracts 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 countries across the Commonwealth , and the United States...
case, concerning substantial performance of a contract.
Facts
Mr T Cutter agreed he would sail with Powell from Kingston, JamaicaKingston, Jamaica
Kingston is the capital and largest city of Jamaica, located on the southeastern coast of the island. It faces a natural harbour protected by the Palisadoes, a long sand spit which connects the town of Port Royal and the Norman Manley International Airport to the rest of the island...
to Liverpool
Liverpool
Liverpool is a city and metropolitan borough of Merseyside, England, along the eastern side of the Mersey Estuary. It was founded as a borough in 1207 and was granted city status in 1880...
, England. The contractual note read as follows.
“Ten days after the ship Governor Parry, myself master, arrives at LiverpoolLiverpoolLiverpool is a city and metropolitan borough of Merseyside, England, along the eastern side of the Mersey Estuary. It was founded as a borough in 1207 and was granted city status in 1880...
, I promise to pay to Mr. T. Cutter the sum of thirty guineaGuineaGuinea , officially the Republic of Guinea , is a country in West Africa. Formerly known as French Guinea , it is today sometimes called Guinea-Conakry to distinguish it from its neighbour Guinea-Bissau. Guinea is divided into eight administrative regions and subdivided into thirty-three prefectures...
s, 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
Condition precedent
Condition precedent refers to 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 becomes due, i.e., before any contractual...
to the obligation to pay.
Grose J concurred.
Lawrence J concurred.
See also
- Sumpter v HedgesSumpter v HedgesSumpter v Hedges [1898] 1 QB 673 is an English contract law case, concerning substantial performance of a contract and restitution for unjust enrichment.-Facts:...
[1898] 1 QB 673 - Jacob & Youngs v. KentJacob & Youngs v. KentJacob & Young, Inc. v. Kent, 230 N.Y. 239 is a famous contract law case with the majority opinion by Judge Cardozo. It dealt with the matters of material breach and substantial performance.-Facts:...
, 230 N.Y. 239 (1921) a NY Court of Appeal case by Cardozo J. - Hoenig v IsaacsHoenig v IsaacsHoenig v Isaacs [1952] is an English contract law case, concerning substantial performance of an entire obligation.-Facts:Mr Hoenig was meant to decorate and furnish Mr Isaac’s flat for £750. When the work was done, there were problems with a bookcase and wardrobe, which would cost £55 to fix...
[1952] EWCA Civ 6, 2 All ER 176 - Bolton v MahadevaBolton v MahadevaBolton v Mahadeva [1972] 2 All ER 1322 is an English contract law case, concerning substantial performance of an obligation.-Facts:Mr Walter Charles Bolton installed central heating for £560 in Mr T Mahadeva’s house. It was too cold, the heat came unevenly and it all gave off fumes. Bolton refused...
[1972] 2 All ER 1322
- Miles v Wakefield Borough Council [1987] AC 539, Lord Bridge and Lord Brightman reincarnating the doctrine in Cutter v Powell to use against a council registrar who refused to work 3 out of 37 hours, as part of industrial action. They advised the employer that they needed to pay nothing.
- 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.