Where the contract contains an express stipulation to the effect that in case of the failure of the plaintiff to complete performance he shall be entitled to no compensation whatever, it seems fair to presume that the risk of failure from any cause was assumed by the plaintiff. Even in such a case, however, it would seem that he ought to be permitted to overcome the presumption and recover the value of his part performance by showing, not merely that his default was due to impossibility, but that the contingency which made performance impossible was one against which the stipulation was not intended to protect the defendant.

The case of Appleby v. Dods 1 illustrates the point. This was an action by a seaman to recover pro rata wages, the homeward voyage not having been completed because the vessel was lost at sea, and Lord Ellenborough, in the course of his opinion, said :2

"The terms of the contract in question are quite clear and reasonable: they relate to a voyage out to Madeira and any of the West India islands, and to return to London; and there is an express stipulation 'that no seaman shall demand or be entitled to his wages, or any part thereof, until the arrival of the ship at the above mentioned port of discharge,' etc.; which must refer to London. And though the reason of this stipulation was, no doubt, to oblige the mariners to return home with the ship, and not to desert her in the West Indies; yet the terms of it are general, and include the present case: and we cannot say, against the express contract of the parties, that the seaman shall recover pro rata, although the ship never did reach her port of discharge named."

1 1807, 8 East 300. 2 At page 303.

Now, had it been proved, instead of assumed, that the sole purpose of the express stipulation quoted was to protect the defendant against desertion, the court would have been obliged, upon principle, to hold that the plaintiff had not assumed the risk of impossibility resulting from the loss of the ship, and consequently was entitled to the value of his part performance.1

Sec. 115. (2) Receipt Of Benefit By Defendant

The element of quasi contractual obligation most frequently declared to be wanting in the class of cases under consideration in this chapter, is that of the receipt of a benefit by the defendant as a result of the plaintiff's part performance. For the sake of clearness several groups of cases in which this question has been raised will be considered separately.