The problem of partly illegal contracts quite commonly arises where it is not a promise which is illegal but part of the consideration. Where there is a single consideration for one or more promises and any part of the consideration is illegal, the promises are wholly unenforceable.40 And the same result separate agreements are made for each article there is no difficulty in enforcing the legal sales.43 It may be supposed, however, that but a single bargain has been made for a number of articles but a different price has been affixed to each. It might seem at first sight that no recovery could be allowed here even for the legal items of the bargain, for it cannot be assumed that the defendant would have paid the same price for some of the goods if the whole transaction was not to be carried out, nor that the seller would otherwise sell them for the same price. If there were no question of illegality in the case, it cannot be doubted that the buyer might refuse to take part of the goods if the seller refused to give all and if part were taken on the assumption that the rest were to follow, the buyer might return what he had received.44 Nevertheless, it has been held that the seller may recover the price of the articles legally sold,45 and it seems rightly; for by the delivery of each of the articles at a specified price a separate debt arises for the price of that article, and a count for goods sold and delivered could be maintained without further evidence. It is not open to the defendant to set up that owing to an illegal contract the price was fixed at a different figure than it otherwis what have been. The illegal contract will serve no better as defence than as a cause of action. But where the articles legally sold were merely incidental to the execution of an illegal purpose, no recovery even for them can be had.46
Co. v. Hayes, 76 Cal. 387, 18 Pac. 391, 9 Am. St. Rep. 211; Lindsay v. Smith, 78 N. C. 328, 24 Am. Rep. 463.
37 Hanauer v. Gray, 25 Ark. 350, 99 Am. Dec. 226.
38 Manson v. Curtis, 223 N. Y. 313, 119 N. E. 559, Ann. Cas. 1918 E. 247; Pulp Wood Co. v. Green Bay Paper Ac. Co., 168 Wis. 400, 170 N. W. 230.
39 Price v. Green, 16 M. &. W. 346; Dubowski v. Goldstein,  1 Q. B. 478; Haynes v. Doman,  2 Ch. 13, 24; Oregon S. N. Co. v. Win-sor, 20 Wall. 64, 22 L. Ed. 315; Westr ern Union Tel. Co. v. B. A S. W. Ry. Co., 3 McCrary, 130; Dean v. Emerson, 102 Mass. 480; Pelts v. Eicheie, 62 Mo. 171; Lange v. Werk, 2 Ohio St. 520; Smith's Appeal, 113 Pa. St. 579, 6 Atl. 251. Compare More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Franz v. Bieler, 126 Cal. 176, 56 Pac. 249, 58 Pac. 466; Fishell v. Gray, 60 N. J. L. 5, 37 Atl. 606. See also United States v. Bradley, 10 Pet. 343, 9 L. Ed. 156; Gelpcke v. Dubuque, 1 Wall. 221, 17 L. Ed. 530.
40 Pickering v. Dfraoombe Ry. Co., L. R. 3 C. P. 235, 250; Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549; McMullen v. Hoffman, 174 U. S. 639,43 L. Ed. 1117,19 S. Ct. 839; Haselton v. Sheckells, 202 U. S. 71, 50 L. Ed. 939, 26 S. Ct. 567; Western Indemnity Co. v. Crafts, 240 Fed. 1,153 C. C. A. 37; Pettdt's Admr. v. Pettit's Distributees, 32 Ala. 288; Bryant Lumber Co. v. Fourche, 124 Ark. 313, 187 8. W. 455; Railroad Co. v. Taylor, 6 Colo. 1; Giles v. De Cow, 30 Colo. 412, 70 Pac. 681; Chandler v. Johnson, 39 Ga. 85; Ramsay's Est. p. Whitbeck, 183 111. 550, 56 N. E. 322; James p. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Koster v. Seney, 99 Iowa, 584, 68 N. W. 824; Gerlach v. Skinner, 34 Kana. 86, 8 Pac. 257, 55 Am. Rep. 240; Kim-brough v. Lane, 11 Bush, 556; Amermust follow even though there are several considerations, some of which are legal, if the legal considerations are not apportioned to corresponding promises, for otherwise it is impossible to maintain an action on any of the promises without basing it to some degree upon the illegal portion of the consideration.41 Where, however, not only is the consideration separable into legal and illegal portions, but also the promises are correspondingly apportioned; that is, where the contract may properly be called divisible, it has been held that' recovery may be had upon the promises which are supported by the legal portions of the consideration; and subject to a qualification similar to that stated in the preceding section, this is sound.42