Same - Divisible Agreements

Where an agreement consists of several promises based upon several considerations, the fact that one or more of the considerations is illegal will not avoid all the promises, if those which are based upon legal considerations are severable from the others.88 Thus, in the case of the sale of various articles, some of which it is illegal to sell, if each article is sold for a separate price, so that the consideration is apportionable, the price of those which it was lawful to sell may be recovered.89

Horgan, 17 R. I. 109, 20 Atl. 232, 9 L. R. A. 110. A note. In consideration of both past and future cohabitation, is void in toto. Massey v. Wallace, 32 S. C 149, 10 S. E. 937. See "Contracts," Dec. Dig. (Key-No.) $ 137; Cent. Dig. §§ 701-712.

85 See cases cited infra, note 89.

86 Widoe v. Webb, 20 Ohio St. 431, 5 Am. Rep. 664; Deering v. Chapman, 22 Me. 488, 39 Am. Dec. 592; Kidder v. Blake, 45 N. H. 530; Allen v. Pearce, 84 Ga. 606, 10 S. E. 1015; Braitch v. Guelick, 37 Iowa, 212; Cotten v. McKenzie, 57 Miss. 418; Oakes v. Merrifield, 93 Me. 297, 45 Atl. 31. But see Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837; Wilcox v. Daniels, 15 R. I. 261, 3 Atl. 204. See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

87 Cobb v. Cowdery, 40 Vt. 25, 94 Am. Dec. 370; Widoe v. Webb, 20 Ohio St 431, 5 Am. Rep. 664; ante, p. 140. See, also, Rosenbaum v. Credit System Co., 65 N. J. Law, 255, 4S Atl. 237, 53 L. R. A. 449; King v. King, 63 Ohio St 363, 59 N. E. Ill, 52 L. R. A. 157, 81 Am. St. Rep. 635. See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

38 Robinson v. Green, 3 Metc. (Mass.) 159. See "Contracts" Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

89Carleton v. Woods, 28 N. H. 290; Shaw v. Carpenter, 54 Vt. 155, 41 Am. Rep. 837; Walker v. Lovell, 28 N. H. 138, 61 Am. Dec. 605; Boyd v. Eaton, 44 Me. 51, 69 Am. Dec. 83; Chase's Ex'rs v. Burkholder, 18 Pa. 48. If a sale of a number of articles is for a gross price, the contract is indivisible, and, if a sale of some is prohibited, none of the price can be recovered. Ladd v. Dillingham, 34 Me. 316. And see Holt v. O'Brien, 15 Gray

Again, if there are several promises, made for a lawful consideration, some of which are legal and some illegal, the legal promises may be enforced.90 At an early day it was declared "that if some of the covenants of an indenture or the conditions indorsed upon a bond are against law, and some are good and lawful; that in this case the covenants or Conditions which are against law are void ab initio, and the others stand good." 91 In other words, a lawful promise, made upon a lawful consideration, is not invalid merely because an unlawful promise was made at the same time and for the same consideration.92 This principle is frequently applied to contracts in restraint of trade.93 An agreement, for instance, not to engage in business at a certain place, or any other place, though void as to the general restriction, may be enforced as to the partial restriction, provided the restriction is so worded as to be divisible.9*

(Mass.) 311. See "Contracts," Dec. Dig. (Key-No.) § 237; Cent. Dig. §§ 701-712.

90 Bank of Australia v. Breillat, 6 Moore, P. C 152, 201; U. S. v. Bradley, 10 Pet 343, 9 L. Ed. 448; State v. Board, 35 Ohio St. 519; State v. Findley. 10 Ohio, 51; Union Locomotive & Express Co. v. Railway Co., 35 N. J. Law, 240; Stewart v. Railway Co., 38 N. J. Law, at page 520; Presbury v. Fisher, 18 Mo. 50; Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520; Pennsylvania Co. v. Wentz, 37 Ohio St. 333; Ware v. Curry, 67 Ala. 274; U. S. v. Hodgson, 10 Wall. 395, 19 L. Ed. 937; U. S. v. Mora, 97 U. S. 413, 24 L. Ed. 1013; Piper v. Boston & M. R. R., 75 N. H. 435, 75 Atl. 1041; Osgood v. Central Vermont R. Co., 77 Vt. 334, 60 Atl. 137, 70 L. R. A. 930; Minnesota Sandstone Co. v. Clark, 35 Wash. 466, 77 Pac. 803. Contra, Lindsay v. Smith, 78 N. C. 328, 24 Am. Rep. 463. See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

91 Pigot's Case, 11 Co. Rep. 27b. See "Contracts," Dec, Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

92 Pollock, Cont. (3d Ed.) 337. See "Contracts," Dec. Dig. (Key-No.) § 237; Cent. Dig. §§ 701-712.

93 BISHOP v. PALMER, 146 Mass. 469, 16 N. E. 299, 4 Am. St. Rep. 339, Throckmorton Cas. Contracts, 290. See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

94Peltz v. Eichele. 62 Mo. 171; Dean v. Emerson, 102 Mass. 480; Mallon v. May, 11 Mees. & W. 653; Hubbard v. Miller, 27 Mich. 15, 15 Am. Rep. 153; Thomas v. Miles' Adm'r, 3 Ohio St. 275; Davies v. Lowen, 64 Law T. 655; Haynes v. Dorman, [1899] 2 Ch. 13; Smith's Appeal, 113 Pa. 579, 6 Atl. 251; Rosenbaum v. Credit System Co., 65 N. J. Law, 255, 48 Atl. 237. 53 L. R. A. 449; Security Life & Annuity Co. v. Costner, 149 N. C. 293, 63 S. E. 304. Contra, More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621. A contract by which one formerly dealing in oil in the city of H. agreed not to prosecute such business within the state, the city of I. excepted, for five years, is not divisible, and, being void as to the restriction within the state, is void as to the restriction in the city of H. Consumers' Oil Co. v. Nunnemaker, 1 12 Ind. 560, 41 N. E. 1018, 51 Am. St. Rep. 193. In New Jersey, a contract by which a party agreed not to engage in business within 500 miles of Jersey

Illustrations of this rule are also found in cases where a corporation has entered into an agreement, some parts of which are ultra vires, and so, in a sense, unlawful. It is held in such cases that, "where you cannot sever the illegal from the legal part, * * * the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good." 95 These cases serve, as an illustration, but it must be remembered that agreements of this nature are invalidated not so much by the illegality of their objects as by the incapacity of the corporation to bind itself.96