This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 139. In the present chapter will be briefly considered, how far a promise embracing several executory stipulations is affected by the circumstance that one or more of those stipulations are not available to the promisee by reason of the Statute of Frauds; the remainder being, if they stood alone, good.
§ 140. It is clear that if the several stipulations are so interdependent that the parties cannot reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one stipulation cannot be fairly and reasonably extracted from the transaction, no recovery can be had upon it, however clear of the Statute of Frauds it may be, or whatever be the form of action employed. The engagement in such case is said to be entire and indivisible.1 A reference to some of the decisions on this point will illustrate the principle.
§ 141. In Cooke v. Tombs, the defendant, a ship-builder, verbally contracted to sell certain freehold premises and stock in trade, principally consisting of docks and timber for shipbuilding, and some houses. Upon a suit in equity for a decree of specific execution of the whole agreement, it was held that the agreement, being void as to the land, must be void also as to the personal property which was to be sold with it; McDonald, C. B., remarking that it never could be the intention of the parties that the stock should be sold apart from the premises, as most of it was of little comparative value separately, and, besides, that the agreement being for an entire sum the court could never sever it.1 Similar to this was the case of Lea v. Barber, where the defendant made an oral agreement to take an assignment of leasehold premises, to wit, a brick-ground, at one hundred pounds, and to buy the stock, consisting chiefly of half-made bricks, at a valuation to be made by arbitrators. The arbitrators settled the price, but the defendant refused to complete the purchase. An action was brought upon the entire agreement, and the plaintiff, admitting that the contract as to the assignment was void by the Statute of Frauds, claimed that he could recover the valuation of the stock. But it was held by McDonald, C. B., on the authority of Cooke v. Tombs, that the agreement, being in its nature entire, could not be severed, and that, being void as to the land, it was void in toto.2 So in Mechelen v. Wallace, where the declaration stated that the defendant wished the plaintiff to hire of her a house, and furniture for the same, at the rent, etc., and thereupon, in consideration that the plaintiff would take possession of the house partly furnished, and would, if the defendant sent into it complete furniture by a reasonable time, become tenant to the defendant of the house with all the furniture, at the aforesaid rent, and pay the same quarterly from a certain day, to wit, etc., the defendant promised the plaintiff to send into the said house, within a reasonable time after the plaintiff's taking possession, all the furniture necessary, etc.; it was held that the defendant's agreement to send in furniture was an inseparable part of the contract of leasing, and that the action could not be sustained.1
1 Rainbolt v. East, 56 Ind. 538; Becker v. Mason, 30 Kansas 697; Caylor v. Roe, 99 Ind. 1; Jackson v. Evans, 44 Mich. 510; Pond v. Sheean, 132 111. 312.
1 Cooke v. Tombs, 2 Anst. 420. But see Stansell v. Leavitt, 51 Mich. 536.
2 Lea v. Barber, 2 Anst. 425, note. See also Thayer v. Rock, 13 Wend. (N. Y.) 53, in which the contract was for the sale of one-sixth of a mill-site, with all the timber and irons belonging to the mill, and it was held to be entire. See Prante v. Schutte, 18 Brad. (111. App. Ct.) 62; Grant v. Grant, 63 Conn. 530; Stringfellow v. Ivie, 73 Ala. 209.
§ 142. In Irvine v. Stone, the Supreme Court of Massachusetts held a contract for the purchase of coals at Philadelphia and to pay for the freight of the same to Boston, to be inseparable, so that no recovery for the freight could be had;2 and this case is not unlike that of Biddell v. Leeder, where the Court of Queen's Bench held, upon a contract for the purchase of the plaintiff's share in a ship and to indemnify him for all liabilities on account of his share, that the latter engagement was inseparably connected with the former.8 A contract to hire a shop at a certain rent, and to pay the landlord the amount expended in fitting it up, has also been decided, by the Supreme Court of Massachusetts, to be indivisible.4
§ 143. On the other hand, the cases where the different engagements of the party have been held such as to admit of being reasonably considered separately, or as independent contracts, are equally clear in their general spirit and principle. In Mayfield v. Wadsley, which was upon a contract for the sale of a growing crop of wheat, and also of certain dead stock upon a farm, it was remarked by Abbott, C. J., that the bargain in regard to the latter was made after an interval of time (though at the same interview and almost simultaneously with the former), and he seems to consider that if that interval had not occurred, it would be necessary to hold the contract indivisible.1 But the subsequent decision of the Court of Exchequer in Wood v. Benson clearly establishes a rule independent of any such distinction. There was a written guaranty, by which the defendant engaged to pay for all the gas which might be consumed at a certain theatre during the time it was occupied by a third party, and also to pay for all arrears which might be then due. It was held that the plaintiff could recover upon the former branch of the contract, on a count properly framed for the purpose.2
1 Mechelen v. Wallace, 7 Ad. & E. 49. See also the similar case of Vaughan v. Hancock, 3 C. B. 766. And compare § 117 a, supra, where Angell v. Duke, L. R. 10 Q. B. 174, is discussed.
2 Irvine v. Stone, 6 Cush. 508. So with a contract to convey land and pay off the encumbrances upon it. Duncan v. Blair, 5 Denio (N. Y.) 196; Dock v. Hart, 7 Watts & S. (Pa.) 172. So with a verbal warranty of quality of goods sold under a verbal contract. Lamb v. Crafts, 12 Met. (Mass.) 353. And see Hanson v. Marsh, 40 Minn. 1.