Appleby v Myers Contract

FACTS Appleby agreed to erect machinery on Myers’s premises for £459. When the erection was almost complete, an accidental fire destroyed the premises and the machinery. Appleby sued for £419 on a quantum meruit basis.

BLACKBURN J:

… The whole question depends upon the true construction of the contract between the parties … [I]t sufficiently appears that the work which the plaintiffs agreed to perform could not be performed unless the defendant’s premises continued in a fit state to enable the plaintiffs to perform the work on them; and … if by any default on the part of the defendant, his premises were rendered unfit to receive the work, the plaintiffs would have had the option to sue the defendant for this default, or to treat the contract as rescinded, and sue on a quantum meruit. But … where, as in the present case, the premises are destroyed without fault on either side, it is a misfortune equally affecting both parties; excusing both from further performances of the contract, but giving a cause of action to neither.

… [I]t was argued before us, that, inasmuch as this was a contract of that nature which would in pleading be described as a contract for work, labour, and materials, and not as one of bargain and sale, the labour and materials necessarily became the property of the defendant as soon as they were worked into his premises and became part of them, and therefore were at his risk. We think that, as to a great part of the work done in this case, the materials had not become the property of the defendant; for, we think that the plaintiffs, who were to complete the whole for a fixed sum, and keep it in repair for two years, would have had a perfect right, if they thought that a portion of the engine which they had put up was too slight, to change it and substitute another in their opinion better calculated to keep in good repair during the two years, and that without consulting or asking the leave of the defendant.

But, even on the supposition that the materials had become unalterably fixed to the defendant’s premises, we do not think that, under such a contract as this, the plaintiffs could recover anything unless the whole work was completed. It is quite true that materials worked by one into the property of another become part of that property. This is equally true, whether it be fixed or movable property. Bricks built into a wall become part of the house; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship; and therefore, generally, and in the absence of something to show a contrary intention, the bricklayer, or tailor, or shipwright, is to be paid for the work and materials he has done and provided, although the whole work is not complete. It is not material whether in such a case the non‑completion is because the shipwright did not choose to go on with the work, as was the case in Roberts v Havelock (1832) 3 B & Ad 404, or because in consequence of afire he could not go on with it, as in Menetone v Athawes (1746) 3 Burr 1592.

But, though this is the prima facie contract between those who enter into contracts for doing work and supplying materials, there is nothing to render it either illegal or absurd in the workman to agree to complete the whole, and be paid when the whole is complete, and not till then: and we think that the plaintiffs in the present case had entered into such a contract. Had the accidental fire left the defendant’s premises untouched, and only injured a part of the work which the plaintiffs had already done, we apprehend that it is clear the plaintiffs under such a contract as the present must have done that part over again, in order to fulfil their contract to complete the whole and ‘put it to work for the sums above named respectively’. As it is, they are, according to the principle laid down in Taylor v Caldwell (1863) 3 B & S 826, excused from completing the work; but they are not therefore entitled to any compensation for what they have done, but which has, without any fault of the defendant, perished.

The case is in principle like that of a shipowner who has been excused from the performance of his contract to carry goods to their destination, because his ship has been disabled by one of the excepted perils, but who is not therefore entitled to any payment on account of the part‑performance of the voyage, unless there is something to justify the conclusion that there has been a fresh contract to pay freight pro rata.

On the argument, much reference was made to the civil law. The opinions of the great lawyers collected in the Digest afford us very great assistance in tracing out any question of doubtful principle; but they do not bind us: and we think that, on the principles of English law laid down in Cutter v Powell (1795) 6 TR 320, Jesse v Roy (1834) 1 CM & R 316, Munro v Butt (1858) 8 E & B 738, Sinclair v Bowles (1829) 9 B & C 92, and other cases, the plaintiffs, having contracted to do an entire work for a specific sum, can recover nothing unless the work be done, or it can be shown that it was the defendant’s fault that the work was incomplete, or that there is something to justify the conclusion that the parties have entered into a fresh contract …

Full text

BLACKBURN J:

This case was partly argued before us at the last sittings; and the argument was resumed and completed at the present sittings.

Having had the advantage of hearing the very able arguments of Mr. Holl and Mr. Hannen, and having during the interval had the opportunity of considering the judgment of the Court below, there is no reason that we should further delay expressing the opinion at which we have all arrived, which is, that the judgment of the Court below is wrong, and ought to be reversed.

The whole question depends upon the true construction of the contract between the parties. We agree with the Court below in thinking that it sufficiently appears that the work which the plaintiffs agreed to perform could not be performed unless the defendant’s premises continued in a fit state to enable the plaintiffs to perform the work on them; and we agree with them in thinking that, if by any default on the part of the defendant, his premises were rendered unfit to receive the work, the plaintiffs would have had the option to sue the defendant for this default, or to treat the contract as rescinded, and sue on a quantum meruit. But we do not agree with them in thinking that there was an absolute promise or warranty by the defendant that the premises should at all events continue so fit. We think that where, as in the present case, the premises are destroyed without fault on either side, it is a misfortune equally affecting both parties; excusing both from further performance of the contract, but giving a cause of action to neither.

Then it was argued before us, that, inasmuch as this was a contract of that nature which would in pleading be described as a contract for work, labour, and materials, and not as one of bargain and sale, the labour and materials necessarily became the property of the defendant as soon as they were worked into his premises and became part of them, and therefore were at his risk. We think that, as to a great part at least of the work done in this case, the materials had not become the property of the defendant; for, we think that the plaintiffs, who were to complete the whole for a fixed sum, and keep it in repair for two years, would have had a perfect right, if they thought that a portion of the engine which they had put up was too slight, to change it and substitute another in their opinion better calculated to keep in good repair during the two years, and that without consulting or asking the leave of the defendant. But, even on the supposition that the materials had become unalterably fixed to the defendant’s premises, we do not think that, under such a contract as this, the plaintiffs could recover anything unless the whole work was completed. It is quite true that materials worked by one into the property of another become part of that property. This is equally true, whether it be fixed or movable property. Bricks built into a wall become part of the house; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship under repair, become part of the coat or the ship; and therefore, generally, and in the absence of something to show a contrary intention, the bricklayer, or tailor, or shipwright, is to be paid for the work and materials he has done and provided, although the whole work is not complete. It is not material whether in such a case the non-completion is because the shipwright did not choose to go on with the work, as was the case in Roberts v. Havelock, or because in consequence of a fire he could not go on with it, as in Menetone v. Athawes. But, though this is the primâ facie contract between those who enter into contracts for doing work and supplying materials, there is nothing to render it either illegal or absurd in the workman to agree to complete the whole, and be paid when the whole is complete, and not till then: and we think that the plaintiffs in the present case had entered into such a contract. Had the accidental fire left the defendant’s premises untouched, and only injured a part of the work which the plaintiffs had already done, we apprehend that it is clear the plaintiffs under such a contract as the present must have done that part over again, in order to fulfil their contract to complete the whole and ‘put it to work for the sums above named respectively.’ As it is, they are, according to the principle laid down in Taylor v. Caldwell, excused from completing the work; but they are not therefore entitled to any compensation for what they have done, but which has, without any fault of the defendant, perished. The case is in principle like that of a shipowner who has been excused from the performance of his contract to carry goods to their destination, because his ship has been disabled by one of the excepted perils, but who is not therefore entitled to any payment on account of the part-performance of the voyage, unless there is something to justify the conclusion that there has been a fresh contract to pay freight pro rata.

On the argument, much reference was made to the Civil law. The opinions of the great lawyers collected in the Digest afford us very great assistance in tracing out any question of doubtful principle; but they do not bind us: and we think that, on the principles of English law laid down in Cutter v. Powell, Jesse v. Roy, Munroe v. Butt, Sinclair v. Bowles, and other cases, the plaintiffs, having contracted to do an entire work for a specific sum, can recover nothing unless the work be done, or it can be shown that it was the defendant’s fault that the work was incomplete, or that there is something to justify the conclusion that the parties have entered into a fresh contract.

We think, therefore, as already said, that the judgment should be reversed.

Editor’s note

THE COURT OF EXCHEQUER

The Court of Exchequer was one of the courts into which the Curia Regis divided itself. By the year 1200 it had a separate existence; but the court continued to collect revenue in addition to trying cases.

The first Chief Baron (i.e. the judge who presided over the court, whose powers, incidentally, are now exercised by the Lord Chief Justice – s.35 Judicature Act 1925) was appointed in 1312, and from that date the court had a separate existence.

It was originally a court having jurisdiction only in matters concerning the public revenue, e.g. in actions by the Crown against its debtors; but it afterwards acquired jurisdiction in actions be­tween subject and subject. As a court of revenue it enforced the proprietary rights of the Crown against the subjects of the realm. To proceed against a person in this department of the court was called to ‘exchequer’ him.

As a court of common law, it administered redress between subject and subject in all actions whatever, except real (property) actions. It was a court of record, and its judges were six (formerly five) in number, consisting of one chief and five (formerly four) puisne* barons.

It was formally sub‑divided into a court of common law and a court of equity; but by the Court of Chancery Act, 1841, its equitable jurisdiction (except in revenue matters) was transferred to the Court of Chancery.

Under the Judicature Acts, 1873‑75, the jurisdiction of the Court of Exchequer, as a court of revenue as well as a common law court, was transferred to the High Court of Justice. The judges of the Court of Ex­chequer continued to form a division of the High Court, called the Exchequer Division**, to which all causes which would formerly have been within the exclusive cognisance of the Court of Exchequer were assigned.

A Court of Exchequer was created in Scotland after the union of 1707, charged particularly with the decision of revenue questions. It is now merged in the Court of Session.

* [Fr. Puisnė.] Later born, junior, inferior, lower in rank. The name given to judges and barons who sat with a Chief Justice or Chief Baron.

** The Exchequer Division was merged in the Queen’s Bench Division by s.31 Judicature Act 1873, though the merger did not actually take place until 1881.