If the presumption is indulged that the risk of default resulting from impossibility is not assumed by the plaintiff, it should be rebuttable by proof that the purpose of the condition precedent requiring complete performance before payment included the protection of the defendant against any liability whatever in case of impossibility of performance by the plaintiff. This was true in the much discussed English case of Cutter v. Powell, although under the English doctrine the plaintiff would not, in any event, have been permitted to recover:
1 Appleby v. Dods, 1807, 8 East 300, (services of seamen on vessel lost); Appleby v. Myers, 1867, L. R. 2 C. P. 651, (work on premises destroyed by fire); Anglo-Egyptian Navigation Co. v. Rennie, 1875, L. R. 10 C. P. 271, (repairs on vessel lost before completion); The Madras , P. 90, (towing of vessel before she stranded); King v. Low, 1902, 3 Ont. L. R. 234, (work on dwelling destroyed by fire).
2 Professor Keener, in his treatise on " Quasi-Contracts," expresses it as follows (p. 222): "It would seem to be a clear usurpation on the part of a court to say that a plaintiff shall recover compensation from a defendant in circumstances in which both the plaintiff and the defendant have agreed that the plaintiff should have no compensation, and yet, if a plaintiff who has failed to perform a true condition in the contract is allowed to exact compensation from the defendant in quasi-contract, when the failure would prevent his recovering on the contract itself, a court is practicing such usurpation."
Cutter, Admx. of Cutter v. Powell, 1795, 6 Term R. 320: Assumpsit for work and labor of intestate as second mate of a vessel on a voyage from Kingston to Liverpool. The defendant engaged in writing "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." Cutter died during the voyage. It appeared that the usual wages of a second mate on such a voyage, when shipped by the month out and home, were four pounds per month.
Lord Kenyon, C.J. (p. 324): "... 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."
Grose, J. (p. 326): "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 anything 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 anything."
It is clear that Cutter's failure to complete the voyage would not have been held a breach, for assuming that he promised to complete it the promise would have been construed to contain an implied exception excusing his estate from liability in case of his death. But since the extraordinary wages agreed to be paid by the defendant satisfied the court that the parties intended that the plaintiff should receive nothing in case of failure from any cause, it was properly held that, in respect of compensation for his services, the plaintiff assumed the risk of default resulting from impossibility, and therefore could not fairly seek compensation for his part performance.