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 covenants are contained in different instruments, the courts incline to treat them as severable.1 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.2 On the other hand, an entire contract may be made up of two or more instruments.3 The question to be determined in each case is whether the language of the contract, when read in connection with the surrounding circumstances and the nature of the subject-matter, shows that the parties intended to separate the covenants in the different instruments into different contracts, or whether they intended to combine them into one contract.4 A contract by which A agrees to sell to B a number of different tracts of land for an entire sum, is an entire contract, although one bond was given for the performance of such contract as to the land to which A had the legal title, and another bond for the performance of the contract as to the land which A was purchasing from the government.5 Accordingly, the purchaser can not enforce specific performance as to the land the legal title to which was in the vendor, without offering to perform the entire contract.6 If a tractor engine and plows are bought at the same time with the understanding on the part of both buyer and seller that they are to be used together, the contract is entire, although separate orders and separate notes are given for each because of the fact that the engine is sent from one of the seller's branch agencies and the plows are sent from another.7 The fact that the tractor does not perform the work satisfactorily entitles the buyer to avoid the entire contract.8 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.9 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.10
1 See Sec. 2050.
2 See Sec. 1030 et seq. 3 See Sec. 1030.
4 See Sec. 1031 et seq.
5 See Sec. 1425.
6 See Sec. 2990 et seq.
1 United States. Pittsburg, Cincinnati & St. Louis Ry., v. Keokuk & Hamilton Bridge Co., 155 U. S. 156, 39 L. ed. 106.
Illinois. Howell v. Moores, 127 111. 67, 19 N. E. 863.
Michigan. Hemenway v. Burnham, 90 Mich. 227, 51 N. W. 276.
New York. Kirtz v Peck, 113 N. Y. 222 21 N E. 130.
Pennsylvania. Hennershotz 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 Edgerton v. Power, 18 Mont. 350, 45 Pac. 204; Pierson v. Crooks, 115 N. Y. 539, 12 Am. St. Rep. 831, 22 N. E. 349: Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L R, 1434, 181 Pac. 288.
See Sec. 2086.
3 Louisiana. Meyer v. Labau, 51 La. Ann. 1726, 26 So. 463.
Maine. American Gas & Ventilating Machine Co. v. Wood, 90 Me. 516, 43 L. R. A. 440, 38 Atl. 548.
Michigan. Co-operative Telephone Co. v. Katus, 140 Mich. 367, 112 Am. St. Rep. 414, 103 N. W. 814.
Ohio. Tiernan v. Beam, 2 Ohio 383.
Oklahoma. Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. R. 1434| 181 Pac. 288.
Vermont. Spriggs v. Rutland Ry., 77 Vt. 347, 60 Atl 143.
4 See Sec. 2086 et seq. and 3000. 5 Tiernan v. Beam, 2 Ohio 383.
6 Tiernan v. Beam, 2 Ohio 383.
7 Hart-Parr Co. v. Duncan, - Okla. -, 4A.L.R. 1434, 181 Pac. 288.
8 Hart-Parr Co. v. Duncan, - Okla. -, 4 A. L. R. 1434, 181 Pac. 288.
9 American Gas & Ventilating Machine Co. v. Wood, 00 Me. 516, 43 L. R. A. 449, 38 Atl. 548.
10 Meyer v. Labau, 51 La. Ann. 1726, 26 So. 463.
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.11 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.12 A non-negotiable note, and a contract whereby the payee binds himself to his assignee for the payment thereof, are separate contracts.13
If one contract is the consideration of the other, the two are entire.14 If A agrees to buy fruit from one grove which belongs to B in consideration of a contract for handling fruit from another grove, the contracts are entire and the breach of the second contract may be treated by the adversary party as a discharge of the first contract.15