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.
"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.1 If the parties intend to transfer the realty and personalty of a business as a whole, the fact that a separate consideration is named for each for the purpose of determining the amount of revenue stamps to be placed upon the deed for the realty, does not show that the contract is severable.2 A contract for lease of a telephone and for subscription to the stock of a co-operative company, is held to be entire if neither of them would have been entered into but for the other, although the consideration for each is apportioned.3 A contract for the sale of a certain amount of coal at a certain price per ton, to be shipped in instalments,4 or a contract to furnish a certain amount of crushed stone at a certain price per cubic yard, to be delivered at a certain quantity per day,5 or a contract by a state to sell a tract of one hundred sixty acres at one dollar per acre,6 each constitute an entire contract. A contract for transporting a number of barrels of salt at a certain price per barrel,7 or a contract for leasing a vessel at a certain amount per day, no time for the return of such vessel being fixed.8 or for thrashing a crop at a certain price per bushel.9 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.10 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 instalment of rent due and unpaid is not a bar to an action to recover instalments which subsequently fall due.11
11 Edward Thompson Co. v. Washburn, 101 Mass. 6, 77 N. E. 483.
12 Loomis v. Eagle Bank, 10 O. S. 327.
13 Flather v. Economy Slugging Machine Co., 71 N. H. 398, 52 Atl. 454.
14 Crogster v. Bayfield County, 99 Wis. 1; 74 N. W. 635, 77 N. W. 167.
15 Katz v. Bedford, 77 Cal. 319, 1 L. R. A. 826, 19 Pac. 523.
16 Curry v. Kansas & Colorado Pacific By., 58 Kan. 6, 48 Pac 579.
1 Arkansas. Carr v. Hahn, 133 Ark. 401, 202 S W. 685.
California. Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305.
Iowa. Sauser v. Kearney, 147 la. 335, 126 N. W. 322.
Michigan. Co-operative Telephone Co. v. Katus, 140 Mich. 367, 112 Am. St. Rep. 414, 103 N. W. 814.
Missouri. Cantwell v. Crawley, 188 Mo. 44, 86 S. W. 251.
New Jersey. Kelly Construction Co. v. Hackensack Brick Co., 91 N. J. L. 585, 2 A. L. R. 685, 103 Atl. 417.
North Dakota. Elliott Supply Co. v. Green. 35 N. D. 641, 160 N W. 1002.
Ohio. Stein v. Steamboat Prairie Rose, 17 O. S. 472; Burckhardt v. Burckhardt, 36 O. S 261.
Pennsylvania. Producers' Coke Co. v. Hillman, 243 Pa. St. 313, 90 Atl. 144.
Wisconsin. Prautsch v. Rasmussen, 133 Wis. 181, 113 N W. 416.
"It may readily be conceded that if the evidence went no further than to show that, at one and the same time, the parties agreed that the plaintiff should sell to the defendant, at a given price, the oranges from one grove, and that he should deliver to the defendant for handling, the oranges from other groves, for a compensation of fifty cent3 per box, the agreement for sale and the agreement for handling, would form separate and independent undertakings, and a breach of one would not authorize a rescission of the other. The several things required to be done by plaintiff were to be done at different times, and the money consideration to be paid for them was not entire, but was apportioned to each of the items to be performed. There is ample authority for the proposition that in such case the stipulations are ordinarily regarded as severable and independent. As examples of cases declaring contracts to be severable under such circumstances as those supposed, may be cited: Norris v. Harris, 15 Cal. 226 (250); More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Herzog v. Purdy, 119 Cal. 99 (102), 51 Pac. 27; Potsdamer v. Kruse, 57 Minn. 193, 58 N. W. 983; Keeler v. Clifford, 165 111. 544, 46 N. E. 248; Holmes v. Gregg, 66 N. H. 621, 28 Atl 17. But it must be remembered that the question whether a contract is entire or whether its various stipulations are to be regarded as severable is a question of construction. The court seeks to determine the intent of the parties from a consideration of all the circumstances surrounding the making of the contract The rule is well stated in Wooten v. Walters, 110 N. C. 251, 14 S. E. 734. 736. as follows: 'A contract is entire, and not severable, when by its terms, nature, and purpose it contemplates and intends that each and all of its parts, material provisions and the consideration, are common each to the other and independent. * * * On the other hand, a severable contract is one in its nature and purpose susceptible of division and apportionment, having two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, nor is it intended by the parties that they shall be. * * * It is sometimes difficult to determine whether the contract is entire or severable in such cases, and there is great diversity of decisions on the subject, but on the whole, the weight of opinion, and the more reasonable rule would seem to be that where there is a purchase of different articles at different prices at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter or by the act of the parties. This rule makes the interpretation of the contract depend on the intention of the parties as manifested by their acts and the circumstances of each particular case.' And the cases relied on by the appellant, in which this court has declared certain contracts to be severable, all recognize that the intention of the parties governs and that stipulations apparently distinct and separate may, by the agreement of the parties, be made to be mutually dependent and to form parts of an entire contract. Thus, in Norris v. Harris, 15 Cal. 220, Field, C. J., said: 'But a contract, made at the same time, of different articles, at different prices, is not an entire contract, unless the taking of the whole is essential from the character of the property, or is made so by the agreement of the parties, etc.' More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621, declares that where the price is, by the contract, apportioned to each item to be performed, 'the contract will generally be held to be severable.' And in Herzog v. Purdy, 110 Cal. 99, 51 Pac. 27, the court in speaking of a similar contract, said: 'such a contract of sale the law regards in general as severable, and we discover no evidence here to take the case out of the rule, nothing to show that the sale of one item was contingent upon the sale of the others, or that the contract was for other reasons an entirety.' * * *
"The case at bar differs in its facta from all those cited, in that the answer alleged and the court found that the two undertakings of the plaintiff as to the different groves were, in, fact, by the agreement of the parties, made parts of one contract, and the agreement to buy the oranges from one grove was in consideration of defendant's having the handling of the oranges from the other groves, This was in effect an allegation and finding that the contract was entire and not severable. Such finding being, as we have seen, sustained by the evidence, it follows that on the refusal by the plaintiff to fully perform his part of the contract, there was a partial failure of consideration which, under section 1080 of the Civil Code, gave the defendant the right to rescind. Rich-ter v. Union Land & Stock Co., 120 Cal. 367, 62 Pac. 30." Sterling v. Gregory, 140 Cal. 117, 85 Pac. 305. See Sec. 2088.
2 Burckhardt v. Burckhardt, 36 O. 8. 261.
3 Co-operative Telephone Co. v. Ka-tus, 140 Mich. 367, 112 Am. St. Rep. 414, 103 N. W. 814.
4 Providence Coal Co. v. Coxe, 19 R. I. 380, 35 Atl. 210.
5 Prautsch v. Rasmussen, 133 Wis. 181, 113 N. W. 416.
6 State v. Jones, 21 Nev. 510, 34 Pac. 450.