Cutter v Powell (1795) 6 TR 320

Partial performance of a contract.


Mr. Cutter, a sailor, was hired for a voyage and given a promissory note from his employment that ten days after the ship arrives at Liverpool, he will pay Mr. Cutter a certain sum, “provided he proceeds, continues and does his duty as second mate in said ship from hence to the port of Liverpool.” Mr. Cutter began sailing the ship as second mate for about six weeks, yet died before its arrival in Liverpool. Mr. Cutter’s wife brought an action for a proportionate part of his due wages for the substantial amount of the voyage on which he acted as second mate.


The question arose as to whether the sailor was entitled to payment for his substantial performance of the contract as an implied term within the contract.


The Court stipulated that, where parties conclude an express contract, no terms can be implied into the contract. On the facts, the contract between the parties expressly provided that the payment was conditional upon the completion of the voyage and only payable after the ship’s arrival. Thus, under the express terms of the contract, the sailor was entitled to receive the payment if the whole duty of the contract was performed, and not entitled to any payment if the contract was only partially performed. The Court noted that the contract made payment conditional on performance of the full voyage as a form of insurance for the employer. Accordingly, the Court held that, even though the sailor was not to blame for failure to perform the contract, the express terms of the contract renders payment conditional on the full performance of the contract. Thus, on a construction of the express terms of the contract, no payment was due for partial performance.

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