goods delivered were not as prescribed in the contract.

This might appear to be a

very stringent rule and as such there are exceptions to the rule, first being the

exception of severable contracts. This exception is enforceable where the contract

is divided into several parts and payments for the parts that have been completed

can be claimed. In the case Richie v Atkinson where by contract the claimant

agreed to carry a cargo of specified quantity of hemp and iron. The price agreed

was £5 per ton for the hemp and 5 shillings per ton of iron. The claimant only

carried part of the agreed quantity. The defendant argued the contract had not been

fully performed and therefore no payment was due. It was held that the contract

could be divided into separate parts as the parties had agreed a price per ton. The

claimant was thus entitled to payment for the amount carried although the

defendant was entitled to damages for non-performance in relation to the amount

not carried. Another exception is where there is acceptance of part performance,

where one party freely agrees to accept partial performance, then a sum is payable

for the work completed, the main focus being on free or willing acceptance by the

party. In the case Sumpter v Hedges, the claimant agreed to build two houses and

stables for the defendant. It was agreed that £565 would be payable on completion.

The claimant began performance and then ran out of money and was unable to

complete. He had performed just over half of the contract, after which the

defendant decided to complete the work himself. The claimant sought to recover
£333 which is the value of the work that had been completed. He argued that in

completing the work himself, the defendant had thereby accepted partial

performance and prevented the claimant from completing the contract. It was held

that the claimant's action failed. The court held that the defendant had no choice

but to accept partial performance as he was left with a half completed house on his

land therefore it was not a free or willing acceptance of the part performance.

There is also prevention of performance, where one party prevents completion of

the performance then the other party is entitled to payment for the work which has

been completed. This principle is affirmed in Planche v Colburn, where the

claimant agreed to write a book on costume and armor for the defendant as part of

a series called 'the Juvenile Library'. The agreed contract price was £100 to be

payable on completion. The claimant commenced writing and had completed a

great deal of it when the defendant cancelled the series. The defendant refused to

pay the claimant despite his undertaking and the fact that the claimant was still

willing to complete. The claimant brought an action to enforce payment. It was

held that claimant was entitled to recover £50 because the defendant had prevented

the performance. There is also discharge by tender, where a party is willing to

perform and tries to tender performance but the other party does not accept the

performance then the party seeking to tender performance is discharged from the

contract and the non accepting party is liable in damages for non acceptance.