Appleby v Myers (1867) LR 2 CP 65 1;
36 LJCP 331; [1861-73] All ER Rep 452; 16 LT 669
CONTRACT, PERFORMANCE PREVENTED BY AN EVENT BEYOND THE CONTROL OF BOTH PARTIES, SUM PAYABLE ON COMPLETION, DESTRUCTION OF SUBJECT MATTER, CONTINUED EXISTENCE OF SUBJECT MATTER
Facts
The plaintiffs had a contract with the defendant to erect machinery on his premises at a specific price for particular portions and to keep the premises in good repair for two years. The price for the work was to be paid at the end of the two years. After some portions of the work had been finished and others were in the course of completion, the premises with all the machinery and materials inside were destroyed by an accidental fire. The plaintiffs sued the defendant for the recovery of the sum for the completed work. The Court of Common Pleas ruled in favour of the plaintiffs. The defendant appealed to the Court of Exchequer Chamber.
Issues
Are the plaintiffs entitled to recover the sum for the completed work?
Decision/Outcome
The appeal was allowed and the Court of Exchequer Chamber ruled in favour of the defendant.
(1) After the fire, both parties are excused from further performance of the contract.
(2) Where there is a contract to do work on one’s premises and supply materials, according to which the price is to be paid upon completion of the work, the contractor is not entitled to recover anything until the whole work is completed, unless it is shown that the performance of the contract was prevented by the default of the person to whom the premises belong.
(3) The plaintiffs were not entitled to sue in respect of those portions of the work which had been completed, whether or not the materials used had become the property of the defendant or not.
Updated 21 March 2026
This case summary accurately reflects the decision in Appleby v Myers (1867) LR 2 CP 651, a foundational authority in the law of frustration and contractual risk. The principles stated remain good law. The case is still regularly cited as authority for the proposition that where a contract is frustrated, a party cannot recover in contract for work partially performed where payment was contingent on full completion, and that frustration excuses both parties from further performance.
Readers should be aware that the broader law of frustrated contracts in England and Wales is now largely governed by the Law Reform (Frustrated Contracts) Act 1943, which significantly modifies the common law position established in cases such as this one. Under the 1943 Act, courts have a discretionary power to order restitution for benefits conferred before frustration, which would in many circumstances now produce a different practical outcome from that reached in Appleby v Myers itself. The 1943 Act does not apply in all situations (for example, certain contracts are excluded), and the common law rules remain relevant to understanding the historical development of the doctrine. The article does not mention the 1943 Act, so students should ensure they consider its effect alongside this case.
