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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.

Issue

Are the plaintiffs entitled to recover the sum for the completed work?

Held

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.


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