817723, 438 PM Cutter v Powel [1795] EWHC KB J13 (9 June 1795)
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[1795] EWHC KB J13 (9 June 1795)
URL: hatp:/Avww.baili.org/ew/cases/EWHC/KB/795(013.html
Cite as: (1795) 6 Term Rep 320, 101 ER 573, 1795] EWHC KB J13, 6 Term Rep 320
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CUTTER
POWELL
Tuesday, 9 June, 1795,
To assumpsit for work and labour done by the intestate, the defendant pleaded the general issue. And at the
trial at Lancaster the jury found a verdict for the plaintiff for 311. 10s. subject to the opinion of this Court
on the following case.
The defendant being at Jamaica subscribed and delivered to T. Cutter the intestate a note, whereof the
following is a copy; "Ten days after the ship 'Governor Parry,’ myself master, arrives at Liverpool, |
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." The
ship "Governor Parry" sailed from Kingston on the 2d of August, 1793, and arrived in the port of
Liverpool on the 9th of October following. T. Cutter went on board the ship on the 31st of July, 1793, and
sailed in her on the 2d day of August, and proceeded, continued and did his duty as second mate in her
from Kingston until his death, which happened on the 20th of September following, and before the ship's
arrival in the port of Liverpool. The usual wages of a second mate of a ship on such a voyage, when
shipped by the month out and home is four pounds per month: but when seamen are shipped by the run
from Jamaica to England, a gross sum is usually given. The usual length of a voyage from Jamaica to
Liverpool is about eight weeks.
This was argued last term by J. Haywood for the plaintiff: but the Court desired the case to stand over, that
inquiries might be made relative to the usage in the commercial world on these kinds of agreements. It
now appeared that there was no fixed settled usage one way or the other: but several instances were
mentioned as having happened within these two years, in some of which the merchants had paid the whole
wages under circumstances similar to the present, and in others a proportionable part. The case was now
again argued by
Chambre for the plaintiff, and Wood for the defendant.
Arguments for the plaintiff. The plaintiff is entitled to recover a proportionable part of the wages on a
quantum meruit for work and labour done by the intestate during that part of the voyage that he lived and
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served the defendant; as in the ordinary case of a contract of hiring for a year, if the servant die during the
year, his representatives are entitled to a proportionable part of his wages. If any defence can be set up
against the present claim, it must arise either from some known general rule of law respecting marine
service, or from the particular terms of the contract between these parties. But there is no such rule
applicable to marine service in general as will prevent the plaintiff's recovering, neither will it be found,
on consideration, that there is any thing in the terms of this contract to defeat the present claim. It is
indeed a general rule that freight is the mother of wages; and therefore if the voyage be not performed, and
the owners receive no freight, the sailors lose their wages; though that has some exceptions where the
voyage is lost by the fault of the owners, as if the ship be seized for a debt of the owners, or on account of
having contraband goods on board; in either of which cases the sailors are entitled to their wages though
the voyage be not performed. Vin, Abr. "Mariners," 235. But here the rule itself does not apply, the voyage
having been performed, and the owners having earned their freight. There is also another general rule, that
ifa sailor desert, he shall lose his wages: but that is founded upon public policy, and was introduced as a
mean of preserving the ship. But that rule cannot apply to this case; for there the sailor forfeits his wages
by his own wrongful act, whereas here the carton was prevented completing his contract by the act of God.
So if'a mariner be impressed, he does not forfeit his wages; for in Wiggins v: Ingleton'!!, Lord Holt held
that a seaman, who was impressed before the ship returned to the port of delivery, might recover wages
pro tanto, Neither is there any thing in the terms of this contract to prevent the plaintiff's recovering on a
quantum meruit, The note is a security, and not an agreement; it is in the form of a promissory note, and
was given by the master of the ship to the intestate to secure the payment of a gross sum of money, on
condition that the intestate should be able to, and should actually, perform a given duty. The condition was
inserted to prevent the desertion of the intestate, and to ensure his good conduct during the voyage. And in
cases of this kind, the contract is to be construed liberally. In Edwards v. Child!2!, where the mariners had
given bonds to the East India Company not to demand their wages unless the ship retumed to the port of
London, it was held that as the ship had sailed to India and had there delivered her outward bound cargo,
the mariners were entitled to their wages on the outward bound voyage, though the ship was taken on her
return to England, This note cannot be construed literally, for then the intestate would not have been
entitled to any thing though he had lived and continued on board during the whole voyage, if he had been
disabled by sickness from performing his duty. But even if this is to be considered as a contract between
the parties, and the words of it are to be construed strictly, still the plaintiff is entitled to recover on a
quantum meruit, because that contract does not apply to this case. The note was given for a specific sum to
be paid in a given event; but that event has not happened, and the action is not brought on the note. The
parties provided for one particular case: but there was no express contract for the case that has happened;
and therefore the plaintiff may resort to an undertaking which the law implies, on a quantum meruit for
work and labour done by the intestate. For though, as the condition in the note, which may be taken to be a
condition precedent, was not complied with, the plaintiff cannot recover the sum which was to have been
paid if the condition had been performed by the intestate, there is no reason why the representative of the
seaman, who performed certain services for the defendant, should not recover something for the work and
labour of the intestate in a case to which the express contract does not apply.
Arguments on behalf of the defendant. Nothing can be more clearly established than that where there is an
express contract between the parties, they cannot resort to an implied one. It is only because the parties
have not expressed what their agreement was that the law implies what they would have agreed to do had
they entered into a precise treaty: but when once they have expressed what their agreement was, the law
will not imply any agreement at all. In this case the intestate and the defendant reduced their agreement
into writing, by the terms of which they must now be bound: this is an entire and indivisible contract; the
defendant engaged to pay a certain sum of money, provided the intestate continued to perform his duty
during the whole voyage; that proviso is a condition precedent to the intestate or his representative
claiming the money from the defendant, and that condition not having been performed, the plaintiff cannot
now recover any thing. If the parties had entered into no agreement and the intestate had chosen to trust to
the wages that he would have eamed and might have recovered on a quantum meruit, he would only have
been entitled to 81; instead of which he expressly stipulated that he should receive thirty guineas if he
continued to perform his duty for the whole voyage. He preferred taking the chance of earning a large sum
in the event of his continuing on board during the whole voyage to receiving a certain, but smaller, rate of
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‘wages for the time he should actually serve on board; and having made that election, his representative
must be bound by it. In the common case of service, if a servant who is hired for a year die in the middle
of it, his executor may recover part of his wages in proportion to the time of service!*!: but if the servant
agreed to receive a larger sum than the ordinary rate of wages on the express condition of his serving the
whole year, his executor would not be entitled to any part of such wages in the event of the servant dying
before the expiration of the year. The title to marine wages by no means depends on the owners being
entitled to freight; for if the sailors desert, or do not perform their duty, they are not entitled to wages
though the owner earn the freight. Nor is it conclusive against the defendant that the intestate was
prevented fulfilling his contract by the act of God; for the same reason would apply to the loss of a ship,
which may equally happen by the act of God, and without any default in the sailors; and yet in that case
the sailors lose their wages. But there are other cases that bear equally hard upon contracting parties; and
in which an innocent person must suffer if the terms of his contract require it; e.g. the tenant of a house
‘who covenants to pay rent and who is bound to continue paying the rent, though the house be burned
down!4l, With regard to the case cited from 2 Lord Raym.; the case of a mariner impressed is an excepted
case, and the reason of that decision was founded on principles of public policy. Lord Kenyon Ch.J. 1
should be extremely sorry that in the decision of this case we should determine against what had been the
received opinion in the mercantile world on contracts of this kind, because it is of great importance that
the laws by which the contracts of so numerous and so useful a body of men as the sailors are supposed to
be guided should not be overturned. Whether these kind of notes are much in use among the seamen, we
are not sufficiently informed; and the instances now stated to us from Liverpool are too recent to form any
thing like usage. But it seems to me at present that the decision of this case may proceed on the particular
words of this contract and the precise facts here stated, without touching marine contracts in general. That
where the parties have come to an express contract none can be implied has prevailed so long as to be
reduced to an axiom in the law. Here the defendant expressly promised to pay the intestate thirty guineas,
provided he proceeded, continued and did his duty as second mate in the ship from Jamaica to Liverpool;
and the accompanying circumstances disclosed in the case are that the common rate of wages is four
pounds per month, when the party is paid in proportion to the time he serves: and that this voyage is
generally performed in two months. Therefore if there had been no contract between these parties, all that
the intestate could have recovered on a quantum meruit for the voyage would have been eight pounds;
whereas here the defendant contracted to pay thirty guineas provided the mate continued to do his duty as
mate during the whole voyage, in which case the latter would have received nearly four times as much as
if he were paid for the number of months he served. He stipulated to receive the larger sum if the whole
duty were performed, and nothing unless the whole of that duty were performed: it was a kind of
insurance. On this particular contract my opinion is formed at present; at the same time I must say that if
‘we were assured that these notes are in universal use, and that the commercial world have received and
acted upon them in a different sense, I should give up my own opinion.
Ashhurst J. We cannot collect that there is any custom prevailing among merchants on these contracts; and
therefore we have nothing to guide us but the terms of the contract itself. This is a written contract, and it
speaks for itself, And as it is entire, and as the defendant's promise depends on a condition precedent to be
performed by the other party, the condition must be performed before the other party is entitled to receive
any thing under it. It has been argued however that the plaintiff may now recover on a quantum meruit:
but she has no right to desert the agreement; for wherever there is an express contract the parties must be
guided by it; and one party cannot relinquish or abide by it as it may suit his advantage. Here the intestate
was by the terms of his contract to perform a given duty before he could call upon the defendant to pay
him any thing; it was a condition precedent, without performing which the defendant is not liable. And
that seems to me to conclude the question: the intestate did not perform the contract on his part; he was
not indeed to blame for not doing it; but still as this was a condition precedent, and as he did not perform
it, his representative is not entitled to recover.
Grose J. In this case the plaintiff must either recover on the particular stipulation between the parties, or on
some general known rule of law, the latter of which has not been much relied on. I have looked into the
laws of Oleron; and I have seen a late case on this subject in the Court of Common Pleas, Chandler v.
www ball orglow/eases/EWHCIKB/1795//13.Himl ais817723, 438 PM Cutter v Powel [1795] EWHC KB J13 (9 June 1795)
Greaves!®l, I have also inquired into the practice of the merchants in the city, and have been informed that
these contracts are not considered as divisible, and that the seaman must perform the voyage, otherwise he
is not entitled to his wages; though I must add that the result of my inquiries has not been perfectly
satisfactory, and therefore I do not rely upon it. The laws of Oleron are extremely favourable to the
seamen; so much so that if a sailor, who has agreed for a voyage, be taken ill and put on shore before the
voyage is completed, he is nevertheless entitled to his whole wages after deducting what has been laid out
for him. In the case of Chandler v. Greaves, where the jury gave a verdict for the whole wages to the
plaintiff who was put on shore on account of broken leg, the Court refused to grant a new trial, though I
do not know the precise grounds on which the Court proceeded, However in this case the agreement is
conclusive; the defendant only engaged to pay the intestate on condition of his continuing to do his duty
on board during the whole voyage; and the latter was to be entitled either to thirty guineas or to nothing,
for such was the contract between the parties. And when we recollect how large a price was to be given in
the event of the mate continuing on board during the whole voyage instead of the small sum which is
usually given per month, it may fairly be considered that the parties themselves understood that if the
whole duty were performed, the mate was to receive the whole sum, and that he was not to receive any
thing unless he did continue on board during the whole voyage. That seems to me to be the situation in
which the mate chose to put himself; and as the condition was not complied with, his representative
cannot now recover any thing. I believe however that in point of fact these notes are in common use, and
perhaps it may be prudent not to determine this case until we have inquired whether or not there has been
any decision upon them.
Lawrence J. If we are to determine this case according to the terms of the instrument alone the plaintiff is
not entitled to recover, because it is an entire contract. In Salk. 65 there is a strong case to that effect; there
debt was brought upon a writing, by which the defendant's testator had appointed the plaintif?’s testator to
receive his rents and promised to pay him 1001. per annum for his service; the plaintiff shewed that the
defendant's testator died three quarters of a year after, during which time he served him, and he demanded
751, for three quarters; after judgment for the plaintiff in the Common Pleas, the defendant brought a writ
of error, and it was argued that without a full year's service nothing could be due, for that it was in nature
of a condition precedent; that it being one consideration and one debt it could not be divided; and this
Court were of that opinion; and reversed the judgment, With regard to the common case of an hired
servant, to which this has been compared; such a servant, though hired in a general way, is considered to
be hired with reference to the general understanding upon the subject, that the servant shall be entitled to
his wages for the time he serves though he do not continue in the service during the whole year. So if the
plaintiff in this case could have proved any usage that persons in the situation of this mate are entitled to
wages in proportion to the time they served, the plaintiff might have recovered according to that usage.
But if this is to depend altogether on the terms of the contract itself, she cannot recover any thing. As to
the case of the impressed man, perhaps it is an excepted case; and I believe that in such cases the King's
officers usually put another person on board to supply the place of the impressed man during the voyage,
so that the service is still performed for the benefit of the owner of the ship.
Postea to the defendant,
Unless some other information relative to the usage in cases of this kind should be laid before the Court
before the end of this term: but the case was not mentioned again,
Note 1 2 Lord Raym. 1211, [Back]
Note2 2Vemn. 727, [Back]
Note 3. The old law was otherwise; vid, Bro, Abr. "Apportionment," pl. 13, ib. "Labourers," pl. 48, ib. “Contract,” pl 31,
and Worth v. Viner, 3 Vin. Abr. 8 and 9, [Back]
Note 4 Vide Belfour v. Weston, ante, I vol. 310, [Back]
Note $ Hil, 32 Geo. 3,C.B. [Back]
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