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 questions of performance the fact that several covenants are each supported by a distinct consideration, which consideration is thus separately apportioned, is often enough to show that the covenants are severable.1 Thus a contract to erect a certain number of houses, at a fixed price for each house, contains severable covenants.2 However, a contract to do certain work on four houses at a lump sum, specifying, however, the price estimated for each separate house, has been held to be an entire contract, and a recovery for breach thereof is a bar to subsequent actions thereon.3 A contract to sell a number of articles at a price fixed for each is usually a severable contract.4 A contract to make a sample machine and thirty others according to sample, the buyer to pay a certain sum for the sample machine "when delivered complete as per agreement," and a like sum for every other machine, is a severable contract.5 A contract whereby a railroad company agrees to construct a railroad in six distinct sections, and the county agrees to issue certain bonds of particular numbers, to be used in payment of each separate section, is a severable contract. Accordingly, if the county refuses to issue bonds for one of such sections because the entire amount would exceed the constitutional limit of indebtedness, the rest of such contract is not thereby discharged.6 A contract to make a sidewalk " ten feet wide and - feet long," the length not being specified, is not an entire contract for the number of feet intended by the parties, and recovery can be had thereunder for work done.7 A contract to issue annual railroad passes for the life of the promisee has been held to be a severable contract as to each pass, so that a separate action can be brought for each breach.8 It is, as has been said before,9 possible for one consideration to support two or more covenants.10 The fact that several covenants are supported by an entire consideration not apportioned to each is often sufficient to show that the contract is entire.11 A contract to sell a number of articles at a gross price for all is generally inseverable.12 A contract to convey three separate tracts of property,13 or to lumber several different sections of land,14 is an entire contract. A contract to decorate the walls of a room, to construct the woodwork, and to furnish the room, for a lump sum, is an entire contract.15 A contract whereby A agrees that B, during his first ten years' occupancy of certain premises, shall be exempt from borough taxation, and shall be supplied with water for the use of his business at a cost not exceeding" one hundred dollars a year, is an entire contract.10 A contract whereby a broker agrees to buy bonds for a customer, and to take them of! his customer's hands at any time is entire.17 An offer of a reward for the arrest of two criminals is entire and no recovery can be had for the arrest of one.18 While the presence or absence of apportionment of consideration is of great importance in determining whether the contract is entire or severable, as far as questions of performance are concerned, it is not always conclusive. The language of the contract may show that although the consideration is apportioned, the parties may have intended that it should be performed as an entirety. Thus a contract for the sale of a certain amount of coal at a certain price per ton, to be shipped in installments,19 or a contract by a state to sell a tract of one hundred sixty acres at one dollar per acre,20 each constitute an entire contract. A contract for transporting a number of barreh of salt at a certain price per barrel,21 is an entire contract. A contract of partnership for a term of five years, one partner to furnish the use of a mill and the capital, and the other to devote his entire time, ability, and energy to the business, and to render monthly accounts, is an entire contract.22 A lease for a specified term, at a specified monthly rental, has been held to be severable in so far that a recovery of an installment of rent due and unpaid is not a bar to an action to recover installments which subsequently fall due.23 If the consideration is in part apportioned and in part entire the contract is entire. Thus a contract by a county to sell four hundred twelve acres of land at one dollar and twenty-five cents per acre and to release the rest of its swamp land claim is entire.24 Even where the consideration is not apportioned, the context may show that the parties did not intend performance as an entirety. Thus a contract for the sale of a separator and an engine for a lump sum, but with separate warranties for each, the contract providing that the warranties as to one shall not apply to the other, or in any way affect the purchase price of the other, is a severable contract so that the vendee cannot rescind the entire contract for a breach of the warranty as to the engine.25
17 Clark v. Newmann, 56 Neb. 374; 76 N. W. 892.
18 Barry v. Wachosky, 57 Neb. 534; 77 N. W. 1080.
1 Keeler v. Clifford, 165 111. 544; 46 N. E. 248; McDaniels v. Whitney, 38 la. 60; Hill v. Rewee, 11 Met. (Mass.) 268; Burwell, etc., Co. v. Wilson, 57 Neb. 396; 77 N. W. 762; Pierson v. Crooks, 115 N. Y. 539; 12 Am. St. Rep. 831; 22 N. E. 349; McLaughlin v. Hess, 164
Pa. St. 570; 30 Atl. 491; Scofield v. Grow, 63 Vt. 283; 22 Atl. 457.
2 Barnard v. McLeod, 111 Midi. 73; 72 X. W. 24.
3Broxton v. Nelson. 103 Ga. 327; 68 Am. St. Rep. 97; 30 S. E. 38.
4 Young, etc., Co. v. Wakefield, 121 Mass. 91; Pierson v. Crooks, 115 N. Y. 539; 12 Am. St. Rep. 831; 22 N. E. 349.
5 Flather v. Machine Co., 71 N. H. 398; 52 Atl. 454.
6 Crogster v. Bayfield County, 99 Wis. 1; 74 N. W. 635; 77 N. W. 167.
7 Katz v. Bedford, 77 Cal. 319; 1 L. R. A. 826; 19 Pac. 523.
8 Curry v. Ry., 58 Kan. 6; 48 Pac. 579.
9 See Sec. 278.
10 Franklin Telegraph Co. v. Harrison, 145 U. S. 459; Mississippi River Logging Co. v. Robson, 69 Fed. 773; 16 C. C. A. 400; Bates Machine Co. v. Bates, 192 111. 138; 61 N. E. 518; Bank v. Rowlinson. 2 Kan. App. 82; 43 Pac. 304; House v. Jackson. 24 Or. 89; 32 Pac. 1027; Philadelphia Ball Club v. Lajoie, 202 Pa. St. 210; 90 Am. St. Rep.
627; 58 L. R. A. 227; 51 Atl. 973; Rhoades v. R. R., 49 W. Va. 494; 87 Am. St. Rep. 826; 55 L. R. A. 170; 39 S. E. 209.
11 Lee v. Briggs, 99 Mich. 487; 58 N. W. 477; Johnston v. Trask, 116 N. Y. 136; 15 Am. St. Rep. 394; 5 L. R. A. 630; 22 N. E. 377.
12 Miner v. Bradley, 22 Pick. (Mass.) 457.
13 Martin v. Fridenberg, 169 Pa. St. 447; 32 Atl. 429.
14 Lee v. Briggs, 99 Mich. 487; 58 N. W. 477.
15 Pitcairn v. Phillip Hiss Co., 113 Fed. 492; 51 C. C. A. 323.
16 Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. St. 526; 41 Atl. 523.
17 Johnston v. Trask, 116 N. Y. 136; 15 Am. St. Rep. 394; 5 L. R. A. 630; 22 N. E. 377.
18 Blain v. Express Co., 69 Tex. 74; 6 S. W. 679.
19 Providence Coal Co. v. Coxe, 19 R. I. 380; 35 Atl. 210.
20 State v. Jones, 21 Nev. 510; 34 Pae. 450.
21 Warehouse, etc., Co. v. Galvin, 96 Wis. 523; 65 Am. St. Rep. :>7 ; 71 N. W. 804.
22 Cockley v. Brucker, 54 O. S. 214: 44 N. E. 590.
23 Barnes v. Coal Co., 101 Tenn. 354; 47 S. W. 498.