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.
15 Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851.
16Carr v. Hahn, 133 Ark. 401, 202 S. W. 685; Sauser v. Kearney, 147 Ia. 335, 126 N. W. 322; Elliott Supply Co. v. Green, 35 N. D. 641, 160 N. W. 1002; Producers' Coke Co. v. Hillman, 243 Pa. St. 313, 90 Atl. 144.
17Carr v. Hahn, 133 Ark. 401, 202 S. W. 685.
18 "The reasons given by appellant for contending that this contract is divisible are as follows: (1) It contains an itemized list of the articles ordered. (2) This list describes each article by name and design and gives the number, the price per dozen, and the price for the fraction of a dozen so ordered. (3) The contract nowhere states the total price of the articles ordered. (4) Since each article is itemized it can be told at a glance what the purchaser was paying for each. (5) The warranty in the contract that 'any article which is not exactly as represented may be returned to us and we will replace it with a new article without charge, regardless of the cost of the article,' presupposes a collection of individual articles, each one separate and distinct from the other, rather than an indivisible mass of goods. (6) The articles were purchased for the purpose of selling to the retail trade, and that it is a matter of common knowledge that silverware is more often purchased by the piece than by the entire set. (7) That the articles enumerated were of several different and distinct designs, and hence did not constitute one entire set. All of these facts stated by the appellant may be conceded, however, and yet leave the court still in doubt as to the nature of the contract. * * * And we believe that there is in the contract in question a clear indication of what that intention was, and that it was that the contract should be entire. An important part of the contract is the so-called sales guarantee. This provides that:
"We [the seller] guarantee that the purchaser will sell a quantity of silverware in one year, which at the retail price will equal at least one and onehalf times the amount of this order. If sales are less than this amount, we agree to take back at the purchase price the goods remaining on hand, at the expiration of this contract.'
"It is clear from this that the seller desired a showing in the showcases of the entire order. His guarantee was that the sales in one year would 'at the retail price equal at least one and one-half times the amount of this order.' It was provided that there should be no countermand 'of this order.' The order in short was treated as an entirety. There was no guarantee of sales if less than the goods contracted for were bought, nor if less than the goods contracted for were exhibited. Added to this is the fact that the plaintiff, Officer Bevin, testified in his deposition that the goods were sold in specified lots. Added to this is the fact that when on the trial defendant moved for a directed verdict the plaintiff objected on the ground that the parole evidence of the shortage varied the written contract." Elliott Supply Co. v. Oreen, 35 N. D. 641, 160 N. W. 1002. 19 Sauser v. Kearney, 147 Ia. 335, 126 N. W. 322: Producers' Coke Co. v. Hill-man, 243 Pa. St. 313, 00 Atl. 144.
20 Sauser v. Kearney, 147 Ia. 335, 126 N. W. 322.
21 "In support of the text the case of Shaw v. Turnpike Company, 2 P. &
W., 454, is cited, in which a contract that provided for apportionment of consideration was held to be entire, and the plaintiff was denied the right to recover except on full performance. In the case cited by the learned trial judge, and in those cited by counsel for appellee, in support of the construction that prevailed, the fact that the contract provided for payment pro tanto upon delivery of fractional parts of the whole amount contracted for, was allowed to be determining, only because there was entire absence of anything indicating a different purpose. Certainly in no one of these cases is it held that a provision such as this is of such controlling effect, that it must be allowed to defeat the plain and manifest object of the contract. And yet that would be the effect here if it should be allowed to govern. Each party to this contract had a definite object in view which was so clearly expressed that there was no room for doubt by either. The plaintiff, whose sole object was to secure a cancellation of the agreement which required it to deliver to the defendants for sale its entire output of coke during the remaining months of the year, must have fully understood the object of the defendants in requiring as a condition of their assent a promise from the plaintiff company that it would protect the defendants from liability on contracts of sale they had already entered into, by furnishing them the coke sufficient to meet their engagements, at a definite fixed price. The contract here set up is a promise by the plaintiff company, on a sufficient consideration, that it would make these deliveries, not only some, but all of them, for the one definite purpose to save harmless the defendants who otherwise, because of market vicissitudes, would be exposed to the danger of loss. These engagements by the defendants were for deliveries at specified times, in specified amounts, and at specified rates; and the promise by the plaintiff, as averred, was to supply the defendants with an adequate amount of coke to meet them all, amounting in the aggregate to 14,300 tons. There is no mistaking the end or object in view, and it is quite as apparent that to hold this contract severable and not entire, would defeat the object both parties had in view. The consideration paid by the defendants - surrender of their rights under the earlier contract - was based upon a contemplated entire performance by the plaintiff, for, except as this was so, the agreement accomplished nothing in the way of protection to the defendants.
" 'Where a bill of parcels is taken, and includes the articles bought under one whole price, it would, if accepted, afford evidence of an intention by both parties to treat the contract as entire. And wherever the failure as to part would materially defeat the object of the contract and would have affected the sale had such failure been anticipated, the contract would be entire." Story on Contracts, Section 24.
"While it is not averred in the affidavit that failure to complete the contract of plaintiffs would have affected the sale in this case, it is a reasonable inference in view of the situation of the parties and the object contemplated that it would have done so. It was not required that it should have been averred in the. affidavit. The courts always seek to avoid, as far as they consistently can, a construction that would render a contract ineffectual. The present is a case in which the manifest purpose of the agreement would be defeated were it held to be a divisible contract, thereby allowing the plaintiff not simply to disappoint the defendants in what it was intended they should receive for a specific and express purpose, but requiring from the defendants payment for so much performance as met the pleasure, convenience and advantage of the plaintiff. As against such construction the defendants might well reply, in haec foedera non venimus. We have discussed the case as though the contract were as averred in the affidavit. The defendants should be allowed an opportunity to prove the averment. The assignment of error relating to the matter discussed is sustained. The other assignments call for no examination at this time. The judgment is reversed with a procedendo." Producers' Coke Co. v. Hillman, 243 Pa. St. 313, 00 Atl. 144.
22 Minnesota. Johnson v. Fehsefeldt, 106 Minn. 202, 20 L. R. A. (N.S.) 1009, 118 N. W. 797; Bentley v. Edwards, 125 Minn. 179, 51 L. R. A. (N.S.) 254, Ann. Cas. 1915C, 882, 146 N. W. 347.
Montana. Waite v. Shoemaker, 50 Mont. 264, 146 Pac. 736.
Ohio. Stein v. The Prairie Rose, 17 O. S. 471, 93 Am. Dec. 631.
The fact that provision is made for payment in installments does not of itself tend to show that the contract is severable, unless each installment is apportioned by the parties to a certain portion of the performance.27 A contract to work for a certain period of time at a specified salary is entire, although the salary is payable monthly.28