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 question involved is one of performance, the courts approach the problem without any desire, either to treat it as entire or severable. If the covenants are contained in different instruments, the courts incline to treat them as severable.1 If the covenants are contained in one instrument, it is by no means conclusive that they form an entire contract.2 The question to be determined is, whether the parties have, by the language employed, shown their intention to perform each covenant without reference to the performance on the one side, unless all the covenants were performed upon the other. In determining the application of this rule, the question is not whether the subject-matter can in fact be severed, but whether the parties intended it to be severed.3 Thus a contract to sell eight hundred thousand feet of lumber at seven dollars and twenty-five cents per thousand,4 or to remove all the dirt upon certain lots described, above a certain grade, being two thousand yards more or less, at six cents a cubic foot,5 or to construct a heating plant, the materials and labor necessary for which were each separately valued by the parties,6 or to remove several buildings,7 are each entire contracts, although it is possible to sever the subject-matter. Accordingly, performance of part of such contract gives no right of action upon the contract to the party so performing unless he has substantially performed the entire contract. A contract of employment for a certain length of time at a compensation payable at certain intervals, is an entire contract within the application of these rules.8 A contract to work until a certain "crop should be gathered" is an entire contract.9 Accordingly, an employe who breaks such contract, cannot recover anything on the contract for services already rendered thereunder.10 Equity will not give him relief.11 A contract to work as a gardner for one year at fifty-five dollars a month, from March to November, and fifty dollars a month from then to March first, is an entire contract, and if it is renewed from year to year the employer cannot during the year discharge the employe even on notice of a month or more.12 Under an entire contract for the sale of a specified quantity of goods, the vendee is not obliged to accept less than the quantity contracted for.13 Whether the contract in question is found in one instrument or in two or more different instruments, is not conclusive as to whether it is entire or severable. On the one hand, the contract found in one instrument may contain two or more severable covenants. On the other hand, an entire contract may be made up of two or more instruments.14 Thus a note and a separate contemporaneous instrument, giving to the maker of the note the right to surrender one hundred shares of certain stock within four months and discharge the note, make together an entire contract.15 So two instruments, one of which provides for the sale of a place of business and stock of goods, and the other of which provides that the vendor will not compete in business for a certain period, constitute together an entire contract.16 Separate instruments executed at the same time, but containing no reference each to the other, and supported by separate considerations, are separate and not entire contracts. Thus four contracts, each providing for the sale of a distinct section of land, entered into at the same time, but containing no reference each to the other, constitute separate contracts.17 So a non-negotiable note, and a contract whereby the payee binds himself to his assignee for the payment thereof are separate contracts.18
2 "The question whether a contract is entire or divisible, in respect of the question of payment of the consideration cannot be solved by the application of any fixed legal standard. It depends upon the intention of the parties to be gathered from all circumstances surrounding the agreement and from the face of the contract if in writing. It is quite as much, as a rule, a question of fact as of law, particularly where the terms of the agreement rest in parol." State v. Davis, 53 N. J. L. 144, 147; 20 Atl. 1080. 3 See Sec. 509.
1 Pittsburg, etc., Ry. v. Bridge Co., 155 U. S. 156; Howell v. Moores, 127 I1J. 67; 19 N. E. 863; Hemenway v. Burnham, 90 Mich. 227; 51 N. W. 276; Kirtz v. Peck, 113 N. Y. 222; 21 N. E. 130; Hen-nershotz v. Gallagher, 124 Pa. St. 1; 16 Atl. 518. In most cases of this sort the question whether such covenants are dependent or independent is also presented. The courts prefer to regard such covenants as independent..
2 Pierson v. Crooks, 115 N. Y. 539; 12 Am. St. Rep. 831; 22 N. E. 349.
3 Morris v. Wibaux, 159 111. 627; 43 N. E. 837. "The entirety of a contract depends on the intention of the parties and not on the divisibility of the subject. The severable nature of the latter may often assist in determining the intention but will will not overcome the intent to make an entire contract when that is shown." Shinn v. Bodine, 60 Pa. St. 182, 185; 100 Am. Dec. 560; quoted in Easton v. Jones, 193 Pa. St. 147, 149; 44 Atl. 264.
4 Easton v. Jones, 193 Pa. St. 147; 44 Atl. 264.
5 Widman v. Gay, 104 Wis. 277; 80 N. W. 450.
6 Riddell v. Ventilating Co., 27 Mont. 44; 69 Pac. 241.
7 Green v. Hanson, 89 Wis. 597; 62 N. W. 408.
8 Galveston County v. Ducie, 91 Tex. 665; 45 S. W. 798.
9 Timberlake v. Thayer, 71 Miss. 279; 24 L. R. A. 231; 14 So. 446.
10 Timberlake v. Thayer, 71 Miss. 279; 24 L. R. A. 231; 14 So. 446.
11 Mallory v. Maekaye, 92 Fed. 749; 34 C. C. A. 653.
12 Larkin v. Hecksher, 51 N. J. L. 133; 3 L. R. A. 137; 16 Atl. 703.
13 Crowl v. Goodenberjjer, 112 Mich. 683; 71 N. W. 485; Equitable
Mfg. Co. v. Engelke, 68 N. J. L. 567; sub nomine, Price v. Engelke, 53 Atl. 698.
14 Meyer v. Labau, 51 La. Ann. 1726; 26 So. 463; American, etc., Machine Co. v. Wood, 90 Me. 516; 43 L. R. A. 449; 38 Atl. 548.
15 American, etc., Machine Co. v. Wood, 90 Me. 516; 43 L. R. A. 449; 38 Atl. 548.
16 Meyer v. Labau, 51 La. Ann. 1726; 26 So. 463.