Same - Indivisible Agreements

If a promise to do several acts is indivisible, and is in part illegal, if cannot be enforced as to that part which is legal, but the whole agreement is void.83 This rule is too clear to need explanation. The only difficulty is in determining whether the promise is divisible; but this is a question of interpretation of contracts.

Where the agreement consists of one promise made upon several considerations, some of which are bad and some good, here, also, the promise is wholly void, for it is impossible to say whether the legal or the illegal portion of the consideration most affected the mind of the promisor, and induced his promise.84 An illustration of this rule is in the case of sales of goods, some of which it is illegal to sell. Where each article is sold for a separate price, the price of those articles which it was lawful to sell may be recovered.88 If, however, a note is given for the price of all the articles, there can be no recovery at all on it, for it is based in part on an illegal consideration.86

83 Crawford v. Morrell, 8 Johns. (N. T.) 253; Thayer v. Rock, 13 Wend. (N. Y.) 53; Leavitt v. Palmer, 3 N. Y. 19, 51 Am. Dec. 333; McMullen v. Hoffman, 174 U. S. G39, 19 Sup. Ct. 839, 43 L. Ed. 1117; Foote v. Nickerson, 70 N. H. 496, 48 Atl. 1088, 54 L. R. A. 554; Union Cent. Life Ins. Co. v. Berlin, 90 Fed. 779, 33 C. C. A. 274; Chicago, I. & L. Ry. Co. v. Southern Indiana Ry. Co. (Ind. App.) 70 N. E. 843, 846 [quot. proposition of text from Clark on Contracts (1st Ed.) 472]. See "Contracts," Dec. Dig. (Key-No.) § 137; Cent. Dig. §§ 701-712.

84 Chicago, I. & L. Ry. Co. v. Southern Indiana Ry. Co. (Ind. App.) 70 N. E. 843, 846 [quot. proposition of text from Clark on Contracts (1st ed.) 473]; State v. Wilson, 73 Kan. 334, SO Pac. 639, 84 Pac. 737, 117 Am. St. Rep. 479 [cit. Clark on Contracts (1st Ed.) 471]; Featherston v. Hutchinson, Cro. Eliz. 199; TRIST v. CHILD, 21 Wall. 441, 22 L. Ed. 623, Throckmorton Cas. Contracts, 241; State v. Board, 35 Ohio St., at page 519; Bixby v. Moor, 51 N. H. 402; Wisner v. Bardwell, 38 Mich. 278; Saratoga County Bank v. King, 44 N. Y. 87; Bredin's Appeal, 92 Pa. 241, 37 Am. Rep. 677; Sumner v. Summers, 54 Mo. 340; Perkins v. Cummings, 2 Gray (Mass.) 258; BISHOP v. PALMER. 146 Mass. 409. 16 N. E. 299, 4 Am. St. Rep. 339, Throckmorton Cas. Contracts, 290; McQuade v. Rosecrans, 36 Ohio St. 442; Tobey v. Robinson, 99 I11. 222; James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Ricketts v. Harvey, 106 Ind. 564, 6 N. E. 325; Haynes v. Rudd, 102 N. Y. 372, 7 N. E. 287, 55 Am. Rep. 815; Pettit's Adm'r v. Pettit's Distributees, 32 Ala. 288; Woodruff v. Hinman, 11 Vt 592, 34 Am. Dec. 712; Chandler v. Johnson, 39 Ga. 85; Gage v. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557; Edwards Co. v. Jennings, 89 Tex. 618, 35 S. W. 1053; Geer v. Frank, 179 I11. 570, 53 N. E. 965, 45 L. R. A. 110. But see Pierce v. Pierce, 17 Ind. App. 107, 46 N. E. 480; Fishell v. Gray, 60 N. J. Law, 5, 37 Atl. 606; Rosen-baum v. Credit System Co., 65 N. J. Law, 255, 48 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. Thus, in Kansas, it is held that a chattel mortgage is entirely void if illegal as to one of the articles mortgaged (intoxicating liquors). Gerlach v. Skinner, 34 Kan. 86, 8 Pac. 257, 55 Am. Rep. 240; Flersheim v. Gary, 39 Kan. 178, 17 Pac. 825. No recovery, for instance, can be had on the quantum meruit for services rendered in the grocery part of the business under a contract to work for agreed wages as bartender and clerk for a dealer in groceries and liquors, the sale of the latter being prohibited. Sullivan v.

The consideration, to bring a case within this principle, must be illegal and not merely void. If part of the consideration is merely void, and there is still a valid consideration left, it will support the promise, for, as we have seen, the law does not undertake to determine whether the consideration is adequate. It is only where part of the consideration is illegal that it taints the entire agreement.87