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 partial failure of consideration exists, the right of the party not in default to recover what he has paid under the contract depends in the first instance on whether the consideration is by the terms of the contract so apportioned as to fix the amount paid for that part of the consideration which has failed, or not. If the consideration is so apportioned recovery can be had. If not so apportioned, the remedy of the party not in default is to sue on the contract.1 Thus under a sale of a stock of goods in a store together with furniture and fixtures for a gross sum, no recovery can be had for money had and received on the theory of failure of consideration, if the title to the fixtures fails.2 It has been said that the entire consideration may be recovered if the failure of consideration affects a vital term of the contract.3 Thus where a city donated money and subscribed for stock in a railroad on condition that the road should be constructed to the city and that the city should be the end of the division and the place of location of the machine shops, it was said that if the latter conditions were broken and the consideration could not be apportioned, the entire consideration could be recovered.4
4 Anthony v. Sewing Machine Co., 16 R. I. 571; 5 L. R. A. 575; 18 Atl. 176.
5 Slater v. Olson, 83 Minn. 35; 85 N. W. 825.
6 Dennis v. Brewing Co., 80 Minn. 15; 82 N. W. 978.
7 Williamson v. Johnson, 62 Vt. 378; 22 Am. St. Rep. 117; 9 L. R. A. 277; 20 Atl. 279.
8 Warnock v. Davis, 104 U. S. 775.
9 Griggs v. Austin, 3 Pick. (Mass.) 20; 15 Am. Dec. 175.
10 Brown v. Harris, 2 Gray (Mass.) 359.
11 Keystone Surgical Mfg. Co. v. Bate, 187 Pa. St. 460; 41 Atl. 299.
12 Hughes v. Frum, 41 W. Va. 445; 23 S. E. 604.
13 Herwig v. Richardson, 44 La. Ann. 703; 11 So. 135; Pugh v. Moore, 44 La. Ann. 209; 10 So. 710.
14 Furgerson v. Staples, 82 Me. 159; 17 Am. St. Rep. 470; 19 Atl. 158.