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.
In determining whether a contract is entire or severable, the intention of the parties is paramount,1 and, if this intention is Huyett, clearly expressed, no question can arise as to which class of contract it is. This intention is, however, often not clearly expressed, as the parties have generally no clear idea whether the contract is entire or severable, and no definite idea of the legal consequences which would follow from its being in either class. The intention of the parties must therefore be deduced from the language used by the application of the ordinary rules of construction.2 The rules of construction are applied differently, however, in the different classes of cases in which the question whether the contract is entire or severable may arise. If this question arises in connection with the illegality of one covenant, the general principle applies that the courts will uphold a contract, if, by fair construction, it is possible to do so, rather than overthrow it. Accordingly, the test chiefly relied upon in such cases, is whether the parties have apportioned the consideration on the one side to the different covenants on the other, one of which covenants is illegal. If the consideration is apportioned so that for each covenant there is a corresponding consideration, the contract is severable, and the illegality of one covenant does not make the rest unenforceable.3 If, on the other hand, the consideration is not apportioned, and the same consideration supports a legal and illegal covenant, the contract is entire, and is already unenforceable.
11 Katz v. Bedford, 77 Cal. 319; 1 L. R. A. 826; 19 Pac. 523; Mc-Grath v. Cannon, 55 Minn. 457; 57 N. W. 150; Burwell, etc., Co. v. Wilson, 57 Neb. 39G; 77 N. W. 762; Hutchens v. Sutherland, 22 Xev. 363; '0 Pac. 409; Ming v. Corbin, 142 N. Y. 334; 37 N. E. 105; Solen-berger v. Gilbert, 80 Va. 778; 11 S. E. 789.
12 Hutchens v. Sutherland, 22 \tv. 363; 40 Pac. 409.
13 Macklem v. Fales, 130 Mich. 66; 89 X. W. 581.
14 Bank v. Trust Co., 149 111. 343; 23 L. R. A. 611; 36 X. E. 1029.
1 Loud v. Water Co.. 153 U.S. 564; Pollak v. Electric Association, 128 U. S. 446; Lambie v. Steel Co., 118 Ala. 427: 24 So. 108;