Contracts frequently occur in which the promise of one or both parties admits of a more or less complete performance, and the damage sustained by an incomplete performance or partial breach of which may be apportioned according to the extent of failure. The performance of the promise in such cases is said to be divisible. The promise is in fact regarded as a number of promises to do a number of similar acts, and a breach of one or some of them does not discharge the other party.80 On the other hand, the promise may be indivisible or entire, and if it so, and is not independent of the promise of the other party as heretofore explained, its entire performance is, as a rule, a condition concurrent or precedent to the liability of the other party to perform.81
12 S. D. 108, 80 N. W. 166; Shelly v. Mikkelson, 5 N. D. 22, 63 N. W. 210. Contra. Sheeren v. Moses, 84 111. 448. See Harriman, Cont. §§ 321, 322. See "Contracts," Dec. Dig. (Key-No.) § 278; Cent. Dig. §§ 1207-1213.
78 See the cases above cited; Williams v. Healey, 3 Denio (N. Y.) 363; Gazley v. Price, 16 Johns. (N. Y.) 267; post, p. 575. See "Contracts," Dec. Dig. (Key-No.) § 278; Cent. Dig. §§ 1207-1213.
79 Loud v. Water Co., 153 U. S. 564, 14 Sup. Ct. 928, 38 L. Ed. 822; Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307, 14 L. Ed. 157; Foley v. Dwyer, 122 Mich. 587, 81 N. W. 569; Griggs v. Moors, 168 Mass. 354, 47 N. E. 128; Quinlan v. Green County, Ky., 157 Fed. 33, 84 C. C. A. 537, 19 L. R. A. (N. S.) 849. See "Contracts," Dec. Dig. (Key-No.) §§ 278, 281; Cent. Dig. §§ 1207-1213, 12S1-12S3.
80 Ritchie v. Atkinson. 10 East, 295; Norris v. Harris, 15 Cal. 226; Mc-Grath v. Cannon, 55 Minn. 457, 57 N. W. 150; Potsdaraer v. Kruse, 57 Minn. 193, 58 N. W. 983; Fullmer v. Poust, 155 Pa. 275, 26 Atl. 543, 35 Am. St. Rep. 881; Gill v. Lumber Co., 151 Pa. 534, 25 Atl. 120; Ming v. Corbin, 142 N. Y. 334, 37 N. E. 105. Even where there is an entire contract for the sale of goods, although if the seller delivers a quantity less than he contracted to sell the buyer may reject them, it is generally held that if the buyer accepts them he must pay for them at the contract price, although the seller fails to deliver the rest Oxendale v. Wetherell, 4 Man. & R. 429; Bowker v. Hoyt, 18 Pick. (Mass.) 555; Booth v. Tyson, 15 Vt. 515; Clark v. Moore, 3 Mich. 55; Richards v. Shaw, 67 111. 222; Polhemus v. Heiman, 45 Cal. 573; McDonough v. Marble Co., 112 Fed. 634, 50 C. C. A. 403. Contra, Champlin v. Rowley, 18 Wend. (N. Y.) 1ST; Id., 13 Wend. (N. Y.)
The question of divisibility is difficult, and this difficulty has resulted in a direct conflict in the decisions. The question is one of construction. "The contract may be entire or severable, according to the circumstances of each particular case," it has been said in speaking of contracts of sale, "and the criterion is to be found in the question whether the whole quantity - all of the things as a whole - is of the essence of the contract. If it appear that the purpose was to take the whole or none, then the contract would be entire; otherwise, it would be severable. * * * 'On the whole, the weight of opinion and the more reasonable rule would seem to be that, where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter or by the act of the parties.' This rule makes the interpretation of the contract depend on the intention of the parties as manifested by their acts, and by the circumstances of each particular case." 82 Though this was said in reference to contracts of sale, the reason applies to other contracts as well.83
In a leading case the plaintiff had promised to take his ship to a port, and there load a complete cargo, and to deliver the same on being paid freight. He came away with an incomplete cargo, and the defendant refused to pay any freight on the ground that the completeness of the cargo was a condition precedent to any payment being due. Lord Ellenborough said that whether it was so or not depended, "not on any formal arrangement of words, but on the reason and sense of the thing, as it is to be collected from the whole contract; * * * here the delivery of the cargo is in its nature divisible, and therefore I think it is not a condition precedent; but the plaintiff is entitled to recover freight in proportion to the extent of such delivery, leaving the defendant to his remedy in damages for the short delivery." 84
258; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Nightingale v. Eise-man, 121 N. Y. 288, 24 N. E. 475; Hasiack v. Mayers, 26 N. J. Law, 284; Witherow v. Witherow, 16 Ohio, 238. Even in New York the seller can recover, if the acceptance of part is made under such circumstances as to be a waiver of full performance, as where he is informed by the seller that he will not deliver the rest. Avery v. Wilson, 81 N. Y. 341, 37 Am. Rep. 503; Silberman v. Fretz, 16 Misc. Rep. 449, 38 N. Y. Supp. 151. See "Contracts," Dec. Dig. (Key-No.) § 819; Vent. Dig. §§ 1476-1507.
81 Hartupee v. Crawford (C. C.) 56 Fed. 61; Widman v. Gay, 104 Wis. 277, 80 N. W. 450; Prautsch v. Rasmussen, 133 Wis. 181, 113 N. W. 416; Quarton v. American Law Book Co., 143 Iowa, 517, 121 N. W. 1009, 32 L. R. A. (N. S.) 1 (contract for sale of set of books and delivery by installments). Bee "Contracts," Dec. Dig. (Key-No.) § 297; Cent. Dig. §§ 1214, 1215.
82 Wooten v. Walters, 110 N. C. 251, 14 S. E. 734, 736. See "Contracts." Dec. Dig. (Key-No.) § 171; Cent. Dig. §§ 754-757; "Sales," Dec. Dig. (Key-No.) § 62; Cent. Dig. §§ 171-179.
83 Broumel' v. Rayner, 68 Md. 47, 11 Atl. 833. See "Sales," Dec. Dig. (Key-No.) § 62; Cent. Dig. §§ 171-179.