A contract though within the statute as to some portion of the performance promised by the defendent, may not be as to the remainder. Such a contract is nevertheless unenforceable in any part, since the contract is an entirety, and the fact that part cannot be enforced involves the unenforceability of the whole.57 Even though the contract is divisible in its nature 58 and a divisible portion of performance on both sides may not be within the statute, the same result must be reached. As a divisible contract is not several contracts but a single agreement, neither party can be required to perform part unless the whole is enforceable. Therefore, so long as the contract is wholly executory, it seems obnoxious to the statute unless it can be saved under the principles of part performance or of contracts executed on one side referred to in the preceding sections as adopted by some courts.59 Nor would it seem material that a division of the agreed consideration on the plaintiff's side had been actually performed in expectation of receiving the promised corresponding division of performance from the defendant. As the contract is by hypothesis but a single contract, it does not follow that the defendant would have agreed to give a single division of the contract for the price provided therein, had the contract not also provided that the remaining divisions of the contract also would be performed.60 But where the entire.consideration agreed for on one side has been given, the party so performing may recover under the contract for a divisible portion of the performance on the other side which is not within the statute.61 Thus it has
N. W. 638, "invalid" in the local statute was held equivalent to void.
57Chater v. Beckett, 7 T. R, 201; Thomas v. Williams, 10 B. A C. 664; Mechelen v. Wallace, 7 A. & E. 40; Vaughan v. Hancock, 3 C. B. 766; Hannan v. Reeve, 18 C. B. 587; Pond v. Sheean, 132 111. 312, 23 N. E. 1018, 8 L. R. A. 414; Rainbolt v. East, 66 Ind. 638, 26 Am. Rep. 40; Caylor v. Roe, 99 Ind. 1; Becker v. Mason, 30 Kan. 697,2 Pac. 860; Jackson v. Evans, 44 Mich. 510, 7 N. W. 79; Savage v. Canning, 1 Ir. R. C. L. 434.
58As to the meaning of divisible contracts, see infra, Sec. 861.
59 In Cooke v. Tombs, 2 Anst. 420, the defendant contracted to sell certain real estate and the personal property thereon for a lump sum. It was held that the contract was unenforceable even as to the personal property.
The court seemed to think this would be so even if the price were not a lump sum, since it could not be assumed that the parties would have bought or sold the personal property without the real estate. The same" result was reached in fact in Lea p. Barber, 2 Anst. 425, n, where the price was divisible. See also Mechelen v. Wallace, 7 Ad. & E. 49; Stringfellow v. Ivie, 73 Ala. 209; Grant v. Grant, 63 Conn. 630, 29 Atl. 15, 38 Am. fit. Rep. 379; Thayer v. Rock, 13 Wend. 53. Contracts are sometimes called divisible when what is really meant is that they are several independent contract. Where such is the case even though the independent contracts were made at the same time one may be enforced without reference to the unenforceability of the other. Mayfield v. Wadaley, 3 B. A G. 357.
60See Galvin v. Prentice, 46 N. Y. 162, 6 Am. Rep. 68. In such a case the plaintiff may recover on the theory of quasi-contract, and the extent of his recovery may in a particular case be that specified in the express contract. See infra, Sec. 1460, but it should be remembered that the obligation on which recovery is had is quasi-contractual.
In Hurley v. Donovan, 182 Maes. 04, 63, 64 N. E. 686, the court said: "Where the plaintiff has done work in consideration of the defendant's promising to do two things, the promise to do one being valid, the promise to do the other being within the statute of frauds, it has been held that the plaintiff can, if he chooses, forego all rights by reason of having been promised the two things, and enforce the performance of the one for which the promise is valid, as in Rand c. Mather, llCuah. 1, 59 Am. Deo. 131. There are other cases where there is a contract con-mining 'several stipulations, having reference to distinct objects, and imposing distinct duties, some of which can and some cannot be enforced,' in which it has been held that one of the separate contracts not within the statute can be enforced although some are within the statute and cannot be enforced, as in Friedn v. Pettingill, 116 Mass. 515. But in the case at bar the promise is part of one inseparable contract, namely, the contract to reconvey the land on being paid the money lent, and until then to keep down the interest on the prior incumbrance. It is like an agreement to buy a cargo of coal and pay for its transportation from Philadelphia to Boston, which was under consideration in Irvine v. Stone, 6 Gush. 508, and like the agreement to sell flats and fill them to a specified grade, and to sell land and pay a sewer
Monks, 6 Gray, 492, and in Carr v. Dooley, 119 Mass. 294. In such cases so long as the part of the contract within the statute of frauds is unexecuted, no part of the contract can be enforced, as was held in Irvine v. Stone, 6 Gush. 508; on the other hand it has been held that when the parties have voluntarily executed the part which is within the prohibition of the statute, the promise to do something not within the statute made in consideration of that which is within the statute can be enforced. Page v. Monks, 5 Gray, 492; Carr v. Dooley, 119 Mass. 294. And see Wetherbee v. Potter, 99 Mass. 354."
61 In Wood v. Benson, 2 Cr. & J. 94, the defendant entered into the following guaranty: "I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may be consumed in the Minor Theatre, and by the lamps outside the theatre, during the time it is occupied by my brother-in-law, Mr. Neville; and I do also engage to pay for all arrears which may be now due. Witness my hand, this 10th day of August, 1830." The court held the agreement void as to the arrears because there was no consideration appearing from the memorandum to support the promise, but been held that a contract to guarantee the condition of a sidewalk or a roof for a period of five years, the agreement on the other side being fully executed, might be enforced for the period within a year after it was made.62 It has hitherto been assumed that the part of the contract which is still unexecuted is within the statute. But it may be supposed that every part of the contract which is obnoxious to the statute has been performed. Under these circumstances even though a contract is not properly termed divisible, the promise for the remaining performance may be enforced.63 If, however, the held that recovery might be had for the gas subsequently suppled. See also Floumoy v. Van Campen, 71 Cal. 14, 12 Pac. 257; Rand v. Mather, 11 Cush. 1, 59 Am. Dee. 131; Hurley v. Donovan, 182 Mass. 64, 68, 64 N. E. 685; Godefroy v. Hupp, 93 Wash. 371, 160 Pac. 1066. Cf. Pond p. Sheean, 132 111. 312, 23 N. E. 1018, 8 L. R. A. 414, where an oral contract to leave the plaintiff real and personal property in consideration of services, was held unenforceable even for the personal property after the services had been performed.
62Okin p. Selidor, 78 N. J. L. 54, 56, 78 Atl. 770, 138 Am. St. Rep. 588. The court said: "The agreement was not that after the first year the sidewalk should be in good condition for four more years, but that it should be in such condition during the first year as well. As to a breach occurring during the first year, this agreement was therefore not one that was not to be performed within one year. The fact that an action for breaches occurring after the first year would be barred by the statute does not enter into the present case in which the cause of action arose within the year." In the similar ease of Philip Carey Mfg. Co. v. Southern Construction Co., 2 Ala. App. 202, 56 So. 746, though the court notes that the breach relied on occurred within a year, it also seems of opinion that the contract in no event was within the statute because the contingency on which liability might arise, might happen within the year, and cites the cases concerning contracts of insurance referred to supra, Sec. 495. It should be observed, however, that the contract of insurance may be fulfilled within a year by the occurrence of loes to the full amount of the policy within that time; but a contract to guarantee a roof for five years is not fulfilled when a breach of the guaranty occurs within a year, and even if the total destruction of the premises might terminate the obligation within a year, it would be excused not performed. See supra, [496.
63Morgan v. Griffith, L. R. 6 Exch. 70; Angell v. Duke, L. R. 10 Q. B. 174; Pearsall v. Henry, 153 Cal. 314, 95 Pac. 154; Stephenson v. Arnold, 89 Ind. 426; Rosenberg v. Drooker, 229 Mass. 205, 118 N. E. 302; Negley v. Jeffers, 28 Ohio St. 00; Dock v. Hart, 7 W. & S.172. In Zwicker v. Gardner, 213 Mass. 95, 99 N. E. 949, 42 L. R. A. (N. S.) 1160, a mortgagee promised orally that if the mortgagor would refrain from bidding at the foreclosure sale, he himself would bid in the property, sell it, and account for the surplus over and above the debt and expenses. The mortgagor refrained as requested. The property was sold and suit was brought for the surplus. The court said: "Nothing remains to be done except for the defendant to aclocal statute declares that the original contract was void, and this word is literally construed 64 it seems impossible to assert that the portion of it remaining unperformed can be enforced,65 unless the acceptance of part performance can be said to have indicated mutual assent to the creation of a new contract.65a