This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the contract is divisible in its nature and part only is ultra vires, the valid part of the contract is enforceable.1 Thus a contract with a water company is enforceable as to payment for water and hydrant rentals, though ultra vires as granting an exclusive privilege.2 So where a city has reached its limit of indebtedness, a contract for the construction of a street, the city to pay the cost of paving intersections and to assess the cost of the rest of the street on the abutting property is invalid as to the former clause, but valid as to the latter.3 If the contract is indivisible and part of it is ultra vires, no part of it can be enforced.4 Thus an indivisible contract for settling a valid judgment and purchasing a water and light plant is unenforceable as to the first provision if the latter is ultra vires.5 The contract cannot be so modified by the courts as to make it valid if it is indivisible. A contract for fire-alarm telegraph system which was void as in excess of the limit of indebtedness cannot be changed so as to give the contractor a franchise to maintain it, where part of the apparatus was furnished by the city.6
21 Recovery for constructing and furnishing a schoolhouse. Union, etc., Furniture Co. v. School District, 50 Kan. 727; 20 L. R. A. 136; 32 Pac. 368; School District v. Sullivan, 48 Kan. G24; 29 Pac. 1141; Sullivan v. School District, 39 Kan. 347; 18 Pac. 287. Recovery for constructing street. Ryan v. Coldwater, 46 Kan. 242; 26 Pac. 675; Sleeper v. Bullen, 6 Kan. 300.
22 Newport v. Ry., 58 Ark. 270; 24 S. W. 427; Perry v. Superior City, 26 Wis. 64. Employment as attorney. Hampton v. Logan County, 4 Ida. 646; 43 Pac. 324. Construction of bridge. Salt Creek Township v. King, etc., Mfg. Co., 51 Kan. 520; 33 Pac. 303. Construction of road. Hovey v. Wyandotte County, 56 Kan. 577; 44 Pac. 17; Pleasant View Township v. Shawgo, 54 Kan. 742; 39 Pac. 704. Guaranty that sewer will not flood property. Nashville v. Sutherland, 92 Tenn. 335; 36 Am. St. Rep. 88; 19 L. R. A. 619; 21 S. W. 674.
1 Sacramento Co. v. Pacific Co., 127 Cal. 217; 59 Pac. 568, 825. (The railroad rebuilt roadway on its bridge and turned it over to the county.)
1 Kimball v. Cedar Rapids, 100 Fed. 802; City of Greenville v. Waterworks Co., 125 Ala. 625; 27 So. 764; Valparaiso v. Water Co., 30 Ind. App. 316; 65 N. E. 1063; Coit v. Grand Rapids, 115 Mich. 493; 73 N. W. 811.