§ 25. There is also another distinction, namely, that between entire contracts and divisible contracts, which it may be well to advert to in this place, inasmuch as it modifies the rights and alters the remedies of the parties thereto.1 A divisible contract is a contract the consideration of which is, by its terms, susceptible of apportionment on either side so as to correspond to the unascertained consideration on the other side: as a contract to pay a person the worth of his services, so long as he will do certain work; or to give a certain price for every bushel of so much corn as corresponds to a sample; or to work, at a certain price per month, for an indefinite, or even a specified,2 number of months.3 The criterion of a divisible contract is, that the extent of the consideration on either side is indeterminate until the contract is performed.4 Neither party to such a contract can claim more than an equivalent for the actual consideration on his part. No specified entirety of consideration on either side constitutes a condition of the bargain, but only a certain relation and proportion between the considerations on both sides, to be ascertained on the completion of the contract. Thus, in the instances just stated, there is no total quantity of work, and no exact number of bushels of corn, and no total price specified, but the price is to be adjusted so as to become an equivalent for the labor or the corn, after the contract is performed. The workman might, therefore, leave off his work at any time and claim the worth of his services, because the payment therefor is not conditioned on a performance of the whole amount of work to be done. If, then, the tiling to be done is in its nature apportionable, and no entire sum has been fixed as the price therefor, the contract will be held to be apportionable. Thus, where the plaintiff was employed to repair a ship, and no total sum for the entire repairs was fixed, and after having done a portion of the work, he refused to go on until he should be paid therefor, it was held that he could recover a quantum meruit.1 But if the party
1 If a contract be one and entire, and a portion of it is invalid under the statute of frauds, it cannot be divided so as to allow an action upon a part not so void. Hodgson v. Johnson, El., Bl. & El. 685 (1858). But if a contract consists of two collateral agreements, only one of which relates to an interest in land, then if that part of the contract has been executed, the fact that the whole contract was not in writing will not preclude an action on the other part, founded on such a promise, to be performed after such execution. Green v. Saddington, 7 El. & Bl. 503.
2 Davis v. Maxwell, 12 Met. 286.
3 Nichols v. Coolahan, 10 Met. 449.
4 See More v. Bonnet, 40 Cal. 251 (1870).
1 Roberts v. Havelock, 3 B. & Ad. 404. In this case Lord Tenterden said, " I have no doubt that the plaintiff in this case was entitled to recover. In Sinclair v. Bowles (9 B. & C. 92), the contract was to do a specific work for a specific sum. There is nothing in the present case amounting to a contract to do the whole repairs, and make no demand till they are completed. The plaintiff was entitled to say, that he would proceed no further with the repairs till he was paid what was already due." Mr. Smith, in his Leading Cases, vol. 2, p. 13, note, after referring to this case, goes on to say, in respect to Lord Tenterden's language: "From these words it may be thought that his Lordship's judgment proceeded on the ground that the performance of the whole work is not to be considered a condition precedent to the payment of any part of the price, excepting when the sum to be paid and the work to be done are both specified (unless, of course, in case of special terms in the agreement expressly imposing such condition); and certainly good reasons may be alleged in favor of such a doctrine, for when the price to be paid is a specified sum, as in Sinclair v. Bowles, it is clear that the court and jury can have no right to apportion that which the parties themselves have treated as entire, and to say that it shall be paid in instalments, contrary to the agreement, instead of in a round sum, as provided by the agreement; but, where no price is specified, this difficulty does not arise, and perhaps the true and right presumption is, that the parties intended the payment to keep pace with the accrual of the benefit for which payment is to be made. But this, of course, can only be where the consideration is itself of an apportionable nature, for it is easy to put a case in which, though no price has been specified, yet the consideration is of so indivisible a nature, that it would be absurd to say that one part should be paid for before the remainder; as where a painter agrees to draw A.'s likeness, it would be absurd to require A. to pay a ratable sum on account when half the face only had been finished: it is obvious that he has then received no benefit, and never will receive any, unless the likeness should be perfected. There are, however, cases - that, for instance, of Roberts v. Havelock - in which employed for an entire term be injured and disabled in the work, he can recover for the actual time of his service, without offering to complete the work after his recovery, provided the illness was of such severity and duration that the employer was not bound to receive him.1 If, therefore, money be advanced on a divisible contract, in contemplation of an executory consideration, which subsequently fails in part, the excess above the value of the consideration actually performed may be recovered.
§ 26. An entire contract is a contract the consideration of which is entire on both sides. The entire fulfilment of the promise by either, in the absence of any agreement to the contrary,2 or waiver,3 is a condition precedent to the fulfilment of any part of the promise by the other.4 Whenever, therefore, there is a contract to pay a gross sum, for a certain and definite consideration, the contract is entire, and is not apportion-able either at law or in equity. The principle upon which this rule is founded seems to be, that as the contract is founded upon a consideration dependent upon the entire performance thereof, if from any cause it be not wholly performed, the casus foederis does not arise, and the law will not make provision for exigencies against which the parties have neglected to fortify themselves.6 Thus, where an employer hired a sailor the consideration is in its nature apportionable, and there, if no entire sum have been agreed on as the price of the entire benefit, it would not be unjust to presume that the intention of the contractors was that the remuneration should keep pace with the consideration, and be recoverable toties quoties by action on a quantum meruit." See also Sickels v. Pattison, 14 Wend. 257; Withers v. Reynolds, 2 B. & Ad. 882; Farnsworth v. Garrard, 1 Camp. 38; Baxendale v. Great Eastern Ry. Co., Law R. 4 Q. B. 244 (1869); Briggs v Titus, 7 R. I. 441.