3 Clark v. School District, 29 Vt. 217 (1857).
4 Byrne v. Pattinson, Abbott on Ship. 347. See also Smith v. Wilson, 8 East, 437; Mitchell v. Darthez, 2 Scott, 771; 2 Bing. N. C. 555; Gibbon v. Mendez, 2 B. & Al. 17. See Taylor v. Laird, 1 H. & N. 266 (1856).
5 Illinois Central Railroad Co..u. Demars, 44 111. 292 (1867).
6 Stevenson v. Burgin, 49 Penn. St. 36 (1865). See Whidden v. Belmore, 50 Me. 357 (1863), where less than was bargained for was tendered; Soloman v. Neidig, 1 Daly, 200.
§ 27. So, also, in contracts for labor and services, where a specific work is agreed to be done for a specific price, the work must be wholly completed before any portion of the price can be claimed; unless performance was prevented or the contract was broken3 by the opposite party,4 or unless there was a waiver by him.5 Thus, if a painter should agree to paint a picture for a certain price, he could not deliver the picture unfinished, and claim a portion of the price.6 So, also, if A. agree to repair and make perfect a given article for a certain sum of money, he could recover nothing for partially repairing it.7 And the same is true if the party waive one of the terms of the contract; he cannot afterwards allege a breach in this respect, and claim a ratable proportion of pay in case he does not complete the work.8 If, however, a party acting honestly and with bond fide intention of fulfilling the contract, performs it substantially, but fails in some comparatively slight particular, he is entitled to a fair compensation, according to the contract; the other party receiving credit for whatever loss or damage he may have sustained by these deviations.1 But where performance of the contract has been so negligent and defective as to be of no value at all, the employer may refuse to accept the work, and put an end to the contract; and he cannot be made liable by any subsequent performance after the time within which the work was to have been completed.2 And if a person agrees by an entire contract to build a house for another upon the land of the latter, and the building is destroyed by fire before its completion, though without the fault of either party, the builder can recover nothing for the work actually done.3 But if a person contracts to put into another's building a quantity of machinery, the work being divided into several parts, at separate prices for each part, no time being fixed for payment, and the work is so far done that the owner of the building uses them for his business, although not completed, and a fire destroys the building and machinery, the plaintiff can recover for the work and materials actually done and provided, but not the agreed price for the whole contract.4
1 Paradine v. Jane, Aleyn, 26, 27. See 10 Am. Jurist, 251, 1833; Gilpins v. Consequa, 1 Pet. C. C. 91; Youqua v. Nixon, 1 Pet. C. C. 221; Ex parte Smyth, 1 Swanst. 338, and the reporter's note and cases cited. See Appleby v. Myers, Law R. 2 C. P. 651 (1867); Stubbs v. Holywell Railway Co., Law R. 2 Exch. 311 (1867); Clark v. Gilbert, 26 N. Y. 279.
2 1 Story, Eq. Jur. 470 to 479. See Knauss v. Shiffert, 58 Penn. St. 152 (1868).
3 Preble v. Bottom, 27 Vt. 249 (1855). See Hill v. Hovey, 26 Vt. 109 (1853).
4 Appleby v. Myers, Law R. 2 C. P. 651 (1867), in the Exchequer Chamber, reversing 1 C. P. 615; s. c. Har. & R. 628.
5 See Morrison v. Cummings, 26 Vt. 486 (1854); McClurg v. Price, 59 Penn. St. 420 (1868).
6 Cutter v. Powell, 2 Smith, L. C. 13, note.
7 Sinclair v. Bowles, 9 B. & C. 92; 2 Wms. Saunders, 350 (n. 2); Mucklow v. Mangles, 1 Taunt. 318; Woods v. Russell, 5 B. & Al. 942; Farnsworth v. Garrard, 1 Camp. 38. See also Niblo v. Binsse, 44 Barb. 54; Jackson v. Cleveland, 19 Wis. 400; Cunningham v. Jones, 20 N. Y. 486 (1859); Smith v. Brady, 17 N. Y. 173 (1858).
8 Paige v. Fullerton Woollen Co., 27 Vt. 485 (1854).
§ 28. Another illustration of this rule is to be found in cases of sales. Where a certain and definite thing is sold for a certain price, the contract is unquestionably an entirety, and the purchaser, if he retain the article, will be liable for the entire sum, unless there be a breach of warranty, or unless, under the circumstances, he be permitted to retain it as agent of the vendor. So, where two or more things are sold together for one gross sum, the contract is not susceptible of severance. Thus, where a cow and four hundred pounds of hay were sold for seventeen dollars; it was held, that the contract was entire.1 And this rule obtains because the terms of such a contract not only afford no means of ascertaining the price affixed to each separate article, but also do not show that the purchaser would have been willing to take a part without the whole; - and therefore, great injustice might be done by construing the contract to be severable, and forcing the purchaser to take a portion at an estimated reduction of the price. The entirety is therefore properly considered as the only legal consideration.
1 Gleason v. Smith, 9 Cush. 476; Snow v. Ware, 13 Met. 42; Veazie v. Bangor, 51 Me. 509; Veazie v. Hosraer, 11 Gray, 396; Cardell v. Bridge, 9 Allen, 355 (1764); Tipton v. Feitner, 20 N. Y. 423 (1859); Preston v. Finney, 2 W. & S. 55; Chambers v. Jaynes, 4 Barr, 43.
2 Miller v. Phillips, 31 Penn. St. 218 (1858).
3 Tompkins v. Dudley, 25 N. Y. 272; Eaton v. Joint Sch. Dist., 23 Wis. 874 (1868).
4 Appleby v. Meyers, Law R. 1 C. P. 615 (1866). See also Menetone v. Athawes, 3 Burr. 1592; Niblo v. Binsse, 1 Keyes, 476 (1864). But see Taylor v. Caldwell, 3 B. & S. 826; Adlard v. Booth, 7 C. & P. 108.
§ 29. There seems to be another class of contracts, partaking of the nature both of entire and of divisible contracts, in which, although a certain quantity or number of things is brought together, no total price is fixed, but it is to be calculated at a certain rate per single article or measure; or where, the things being of different kinds, although a total price is named, a certain valuation is affixed to each thing; and in such cases the contract may be treated as a separate contract for each article, although they be all included in one instrument of conveyance. Thus, where A. purchased two parcels of real estate, the one for £700, the other for £500, and took one conveyance of both, A. being afterwards ejected from one by reason of defect of the title, was held to be entitled to recover therefor against the vendor.2 So, also, where a certain farm, and dead stock, and growing wheat were all sold together, but a separate price was affixed to each, it was held, that the contract was only entire as to each item, and was severable into three contracts, and that a failure to comply with the contract as to one item did not invalidate the sale, and give the vendor a right to reject the whole contract.3 In such cases, the contract may be considered as entire or separable, according to the circumstances of the particular case, and the criterion is to be found in the question, whether the whole quantity is of the essence of the contract. If, therefore, although the terms of the contract afford the rule for the apportionment of the consideration, yet if there be a special agreement to take the whole or nothing, or if the evidence clearly show that such was the purpose of the parties, the contract would be entire. Where, therefore, a contract was made to deliver a quantity of lumber at a given day, at a certain price per foot, to be paid for on the delivery and acceptance of the whole, it was held to be an entire contract, and the delivery of the whole of the lumber by the appointed day, to constitute a condition precedent to the right of payment of any part, although the part delivered should have been used.1 So, also, where an agreement was made by A. to work on B.'s farm for "seven months, at twelve dollars per month," and it appeared that the time of service was the essential feature of the contract, it was held, that the contract was entire, and that A. could not recover thereupon, if he left B 's service before the expiration of the seven months, without good cause.2 So, where the agreement is absolutely and unconditionally to take the whole of an indefinite quantity, at a certain rate per measure, and there is no usage of trade creating a different rule, the contract will be considered as an entirety, and not a separate sale of each portion measured; the measure being only a means of estimating the gross sum, and the quantity sold being an entire quantity.3