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.
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.1 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.2 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.4 If the question arises in connection with the Statute of Frauds, the danger of perjury, especially in contracts for the sale of goods, is just as great in cases in which the parties have apportioned the consideration among the respective articles by fixing the price of each, as it is in cases in which the parties have fixed a gross amount for the entire quantity of goods to be delivered. For this reason the courts seem to regard the contract as prima facie entire if entered into between the same parties at the same time;5 and comparatively little attention is paid to the test of apportionment of consideration, which seems to be the controlling test in cases of illegality. If the question is one of performance, the courts approach the problem of construction without any prepossession in favor of the entire contract or the severable contract.6
1, 121 N. W. 1009; Comptograph Co. v. Burroughs Adding Machine Co., 170 la. 83, 159 N. W. 465.
Kansas. Crawford v. Surety Investment Co., 91 Kan. 748, 139 Pac. 481.
Louisiana. Stockstill v. Byrd, 132 La. 404, 61 So. 446.
Maine. American Mercantile Exchange v. Blunt, 102 Me. 128, 10 L. R. A. (N.S.) 414, 66 Atl. 212.
Massachusetts. Barlow Mfg. Co. v. Stone, 200 Mass. 158, 86 N. E. 306.
Mississippi. Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 731, 40 So. 556.
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. Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. R. 1434, 181 Pac. 288.
Oregon, Hodson-Feenaughty Co. v. Coast Culvert & Flume Co., 91 Or. 630, 178 Pac. 382.
Pennsylvania. Shinn v. Bodine, 60 Pa. St. 182, 100 Am. Dec. 560; Producers' Coke Co. v. Hillman, 243 Pa. St. 313, 90 Atl. 144.
Tennessee. Barnes v. Black Diamond Coal Co., 101 Tenn. 354, 47 S. W. 408.
Vermont. Thompson-Starrett Co. v. E. B. Ellis Granite Co., 86 Vt. 282, 84 Atl. 1017.
Washington. Godefroy v. Hupp, 93 Wash. 371, 160 Pac. 1056.
6 Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305; Ganong v. Brown, 88 Miss. 53, 117 Am. St. Rep. 731, 40 So. 556.
"The question whether a contract is entire or divisible, in respect of the question of payment of the consideration, can not 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.
See ch. LX1II.
7 See Sec. 2998 et seq.