One of the most certain of the single tests for determining the intention of the parties is whether the consideration on the one side is apportioned to each of the different covenants on the other, or whether the consideration on the one side is the entire consideration for all the covenants upon the other side.1 If the consideration agreed upon for each covenant is apportioned to each covenant separately, the contract is prima facie severable.2 If the consideration is not apportioned to the various covenants on the part of the adversary party, the contract is prima facie entire.3 A contract for the sale of realty and personalty at a lump sum is entire.4 A contract for the sale of a number of articles in a lump sum is an entire contract,5 and no recovery can be had except for a substantial performance of all of its covenants.6 A contract by which A agrees to furnish prizes to B for a trade contest, and to furnish the services of an organizer in consideration of which B gives his notes to A, is an entire contract,7 and breach of one of such covenants will operate as a discharge of the entire contract.8 A covenant by which A agrees to appoint B as agent to sell A's land, gives to B an option to purchase in case he elects to exercise it, is an entire contract,9 and breach of either covenant operates as a discharge of the contract.10 An agreement to pay a commission for effecting an exchange of different properties, on the other hand, is ordinarily severable as to each article of property.11 A contract by which A agrees to pay to B a certain sum of money for infringing B's patent, a certain royalty for the use of the patent pending litigation, and an additional sum in case the validity of such patent is determined by such litigation, is said to be a severable contract.12 At least A is not obliged to pay such further sum until the validity of such patent is thus established.13 A contract by which A agrees to drive certain pilings for B, to do certain work in excavating, to do certain work in removing an embankment, and to provide a pump, is a severable contract, if a separate price is provided for each separate class of work.14 If a contract for a lease of realty and for the sale of personalty apportions the consideration to each, the part of such, contract which

Berger v. Burrows, 145 Ia. 441, 124 N. W. 333; Stockstill v. Byrd, 132 La. 404, 61 So. 446. See in accordance with this theory, Art. 2108 of the Civil Code of Louisiana. Stockstill v. Byrd, 132 La. 404, 61 So. 446.

4 Stockstill v. Byrd, 132 La. 404, 61 So. 446.

5 Willett Seed Co. v. Kirkeby-Gunde-strup Seed Co., 145 Ga. 559, 89 S. E. 486.

1 United States. In re Hellams, 223 Fed. 460.

Illinois. Antigo Bank v. Union Trust Co., 149 111. 343, 23 L. R. A. 611, 36 N E. 1029.

Minnesota. Bentley v. Edwards, 125 Minn. 179. 51 L. R. A. (N.S.) 254, Ann. Cas. 1915C, 882, 146 N. W. 347.

Ohio. Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 89 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.

Oklahoma. Dunn v. T. J. Cannon Co., 51 Okla. 382, 151 Pac. 1167.

Vermont Waite v. Stanley, 88 Vt. 407, L. R. A. 1916C, 886, 92 Atl. 633.

Wisconsin. Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042.

2 Indiana. Weil v. Stone, 33 Ind. App. 112, 104 Am. St. Rep. 243, 69 N. E. 698.

Iowa. Comptograph' Co. v. Burroughs Adding Machine Co., 179 Ia. 83, 159 N. W. 465.

Massachusetts. Barlow Mfg. Co. v. Stone, 200 Mass. 158, 86 N. E. 306.

Montana. Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851.

Washington. Godefroy v. Hupp, 93 Wash. 371, 160 Pac. 1056.

West Virginia. Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516.

Ohio. Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 89 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.

Oklahoma. Davidson v. Gaskill, 32 Okla. 40, 38 L. R A. (N.S.) 692, 121 Pac. 649.

Vermont. Waite v. Stanley, 88 Vt. 407, L. R. A. 1916C, 886, 92 Atl. 633.

Washington. Loveland v. Reese Co., - Wash. - , 177 Pac. 719.

West Virginia. Jameson v. Board of Education, 78 W. Va. 612, L. R. A. 1916F, 926, 89 S E. 265.

Wisconsin. Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042.

4 Waite v. Stanley, 88 Vt. 407, L. R. A. 1916C, 886, 92 Atl. 633.

5 Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 89 O. S. 365, L. R. A. 1915B, 536, 106 N. E. 33.

65Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 89 O. S. 365, L R. A. 1915B, 536, 106 N. E. 33.

7 Loveland v. Reese Co., - Wash. - , 177 Pac. 719.

8 Loveland v. Reese Co., - Wash. - , 177 Pac. 719.

9Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042.

10 Sixta v. Ontonagon Valley Land Co., 157 Wis. 293, 147 N. W. 1042.

11Godefroy v. Hupp, 93 Wash. 371, 160 Pac. 1056.

12 Comptograph Co. v. Burroughs Adding Machine Co., 179 Ia. 83, 159 N. W. 465.

13 Comptograph Co. v. Burroughs Adding Machine Co., 179 Ia. 83, 159 N. W. 465.

14 Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516.

provides for the sale of personalty is valid, although the oral contract for a lease is unenforceable because of the Statute of Frauds.15 The rule that an apportionment of consideration determines the character of the contract, is not an arbitrary rule, however, but is merely a convenient rule for ascertaining the intention of the parties in most cases. The consideration may be apportioned, but the remaining provisions of the contract may show that the contract is entire.16 A contract to furnish an engine at a certain price and to install it in a boat at a certain price, is said to be an entire contract within the meaning of the mechanics' lien law, which requires the lien to be taken within a certain time after performance.17 A contract for the sale of a number of articles at a certain price for each article is rendered entire by a provision guaranteeing that the purchaser's sales of such articles at retail for the ensuing year would equal one and one-half times the amount of the order.18 The fact that the considerations are apportioned and that they are paid at different times, is not always conclusive in proving the contract to be entire.19 A contract by which A bought a stock of lumber from B for which A was to pay at once, and by which B agreed not to engage in business in competition with A, the consideration of which was to be paid by A at a subsequent time, is an entire contract.20 A contract for terminating a prior contract for the sale of a certain quantity of a given article by the producer to one who has bought to resell, on condition that the producer shall furnish sufficient quantities of such article to enable the buyer to fill his existing contracts, is entire, even though payment for each lot was to be made as it was delivered.21 The fact that the parties have fixed a certain price per unit as a means of estimating the entire consideration to be paid by multiplying such price by the total quantity, does not of itself show that such contract is a severable contract.22 A contract to furnish services at a certain price per unit,23 or to furnish goods at a certain price per unit,24 or to lease property at a certain amount per time unit,25 have each been held to be entire. The fact that separate items are entered for work and material in a contract for constructing or repairing an article, does not show that such contract is severable, if such items are inserted so as to show the adversary party how the total consideration was reached.26