be a promise to pay for a part. Frequently a contract does not state the intention of the parties in this respect, and usage may be of importance in giving the contract a proper construction. Moreover, the right to require full performance before payment may be waived.39 If the contract is divisible it must not be supposed for that reason that there is more than one contract. "Provisions as to shipping in different months and as to paying for each shipment upon its delivery do not split up the contract into as many contracts as there shall be shipments or deliveries of so many quantities." 40 Similarly a contract for a year's service is not split up into twelve contracts by a provision that the employee is entitled to his pay in monthly instalments. The use of the words "entire" and "indivisible" and "divisible" has, however, not infrequently been confusing, for sometimes the words entire or indivisible are used as meaning that there is one contract as distinguished from several contracts, and at other times the words are used as meaning more than this, namely, that there is a contract which is not divisible.41 A divisible 39 J. K. Armsby Co. v. Gray's Harbor Commercial Co., 62 Or. 173, 123 Pac. 32, 36. "Plaintiff further contends that it is not in default in payment for shipments, insisting that payments were not due until the whole amount of the particular shipping order was filled. If plaintiff intended to require the receipt of each shipping order in full before paying for any part of it, it should have refused to receive a partial shipment; but it accepted and used the shipments as received, without reference to the shipping order, and therefore was under obligations to pay for such as were so received. See Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84, 89, 37 N. E. 676." 40 Mersey Steel Co. v. Naylor, 9 A. C. 434, 439; Norrington v. Wright, 115 U. S. 188, 203, 6 Sup. Ct. 12, 29 L. Ed. 366; Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 Fed. 298, 58 C. C. A. 220, 61 L. R. A. 402; Fullam v. Wright & Colton Co., 196 Mass. 474, 82 N. E. 711; Providence Coal Co. v. Coxe, 19 R. I. 380, 582, 35 Atl. 210. The contrary view expressed in Herzog v. Purdy, 119 Cal. 99, 51 Pac. 27, holding that fixing a separate price for different articles made independent bargains as to each is unsound. See also Wilcox v. Badger Motor Car Co., 99 Neb. 189, 155 N. W. 891. 41 An illustration of this error is the case of Longfellow v. Huffman, 55 Or. 481, 104 Pac. 961. A buyer in default for failure to purchase the first instalment of a contract was held, nevertheless, entitled to recover for the seller's refusal to deliver the second instalment. The court admits that there is excellent authority opposed to its conclusion, but says the law in Oregon is settled otherwise. In support of the supposed difference, Oregon cases are cited to show that such a contract had been held "divis 1 contract, using that term properly, is always one contract and not several contracts. It differs in one respect only from other contracts-namely, that on performance on one side of each of its successive divisions, the other party becomes indebted for the agreed price of the division.42 § 862. When a contract will be construed as divisible. "In case of a contract naturally and accurately severable (such as a contract for the sale of a bill of goods at certain prices for each article), courts incline to hold the contract severable, and to grant a recovery for that portion of the goods actually delivered, less damages for the non-delivery of any portion not delivered. Under all ordinary circumstances this course will result in exact justice. The vendor will receive ible," but in these cases the plaintiff was suing for the price of a divisible performance which the defendant had received. The term "divisible contract" seems to have been regarded by the court in the later case as necessarily meaning several contracts. Perhaps in a contract to serve for a year at $100 a month, the court might not have thought that the fact that the servant could sue for the price of a month's service which had been rendered in spite of default in the remainder of the contract, proved that if the servant failed to perform services for the first month or for seven months, he could sue the employer for failure to accept his services for the remaining months. This suppositious case is, however, identical in principle with that which the court had before it. The numerous decision opposed to the Oregon case are collected infra, § 867. So a contract is called "divisible" in Wilcox v. Badger Motor Co., 99 Neb. 189, 155 N. W. 891, though the decision requires the conclusion that there were two separate contracts. Conversely in Garon v. Credit Foncier Canadien, 37 R. I. 273, 92 Atl. 561, the court speaks of a transaction as an "indivisible" contract when it means that there was but a single contract. In this case the terminology induced no error, but in fact though there was but a single contract, it was divisible. The terminology is the same in Dunn v. T. J. Cannon Co., 51 Okla. 382, 151 Pac. 1167; Jameson v. Board of Education, 78 W. Va. 612, 89 S. E. 255, L. R. A. 1916 F. 926; Edilson v. Joyce, [1917] N. Zealand L. R. 648. Still another meaning is given to "entire" in Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S. E. 516. Where a contractor undertakes the completion of a whole undertaking as building a house or a canal, as in Boyle v. Agawam Canal Co., 22 Pick. 381, 33 Am. Dec. 749, and therefore becomes responsible for the whole work, there is a "contract of entirety." Where, however, as in the West Virginia case the contractor merely undertakes certain performances specified in the contract, if he does those things, he is not responsible for their failure to achieve the engineering result desired. 42 See Barrie v. Earle, 143 Mass. 1, 8 N. E. 639, 58 Am. Rep. 126, and infra, § 871. pay for his goods which the vendee has retained, and the vendee will receive compensation for any damage which he has actually suffered." 43 "If, however, it appears by express terms or by necessary implication from the terms of a contract that the intention of the parties was to make payment of the consideration depend upon delivery of all the articles, the contract will be held entire, though the consideration may be measured in units and be actually severable." 44 A contract may be divisible if separate payment was by the contract to be made for several things, even though they were to be used together as parts of a completed whole.45 The difficulty 43 National Knitting Co. v. Bouton & Germain Co., 141 Wis. 63, 64, 123 N. W. 624. To the same effect see Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 156 Cal. 776, 106 Pac. 55; Spring v. Slayden-Kirksey Woolen Mills, 106 Ill. App. 579; Aultman & Taylor Co. v. Lawson, 100 Ia. 569, 69 N. W. 865; Longfellow v. Huffman, 55 Or. 481, 104 Pac. 961; Gill v. Johnstown Lumber Co., 151 Pa. 534, 25 Atl. 120; McLaughlin v. Hess, 164 Pa. 570, 30 Atl. 491; Brown v. Exeter Mach. Works, 60 Pa. Super. 365, and cases cited. 44 National Knitting Co. v. Bouton & Germain Co., 141 Wis. 63, 64, 123 N. W. 624, citing Goodwin v. Merrill, 13 Wis. 658; Shinn v. Bodine, 60 Pa. St. 182, 100 Am. Dec. 560. The court added: "Thus, when a contract required the delivery of 2,000 yards of crushed stone for the purpose of building a bridge, it was held to be entire, notwithstanding the payment was to be at a certain rate per yard. Prautsch v. Rasmussen, 133 Wis. 181, 113 N. W. 416. So contracts to tow a given quantity of logs at so much per thousand feet, and to carry 5,000 barrels of salt at so much per barrel, have been held entire, upon the idea that the terms of the contract, in the light of the surrounding facts, showed that the parties evidently intended to contract for one entire job, and only used the unit of measurement of the consideration for convenience and not as indicating any contemplation of severability. Boutin v. Lindsley, 84 Wis. 644, 54 N. W. 1017; Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 71 N. W. 804, 65 Am. St. Rep. 57. See also Widman v. Gay, 104 Wis. 277, 80 N. W. 450." To these cases may be added: First Nat. Bank v. Perris Irrigation Dist., 107 Cal. 55, 40 Pac. 45; Johnson v. Fehsefeldt, 106 Minn. 202, 118 N. W. 797, 20 L. R. A. (N. S.) 1069; Haslack v. Mayers, 26 N. J. L. 284; Kelly Const. Co. v. Hackensack Brick Co., 91 N. J. L. 585, 103 Atl. 417, 2 A. L. R. 685; Baker v. Higgins, 21 N. Y. 397; Catlin v. Tobias, 26 N. Y. 217, 84 Am. Dec. 183; Nightingale v. Eiseman, 121 N. Y. 288, 24 N. E. 475; Hochberg Contracting Co. v. F. & P. Auto Transp. Co. (N. Y. Misc.), 158 N. Y. S. 879; Witherow v. Witherow, 16 Ohio, 238; Easton v. Jones, 193 Pa. 147, 44 Atl. 264; Producers Coal Co. v. Hillman, 243 Pa. 313, 90 Atl. 144. 45 In Reeves & Co. v. Block, 31 S. Dak. 60, 139 N. W. 780, a contract for the sale of a threshing machine outfit, consisting of a separator, feeder, etc., was divisible, where the price at which each separate article was sold was specified. The court said (p. 782): "The contract was divisble because the price at which each separate ar of determining whether a contract is divisible or not arises chiefly when the contract specifies a rate of payment as so much a pound or a foot or a month, but does not in terms state whether any payment shall be made before full performance has been rendered. The governing principle is the manifested intention of the parties in view of the nature of the contract and the usages of business 46—that is, their intention to have performance of the contract in parts and have the performance of a part on one side the price or exchange of a corresponding part on the other. If payment of a lump sum is to be made for several articles, the contract is necessarily indivisible. 47 Contracts of service for a specified term are held severable when the wages or salary can be construed as payable at specified shorter periods, and generally the mere fact that a rate for the shorter period is stated seems enough to warrant such a construction.48 There can be little doubt that such is ticle was sold was specified. Northwest Thresher Co. v. Mehlhoff, 23 S. Dak. 476, 122 N. W. 428, 35 Cyc. 116; Nichols & Shepherd Co. v. Wiedemann, 72 Minn. 344, 75 N. W. 208, 76 N. W. 41; Westbrook v. Reeves, 133 Iowa, 655, 111 N. W. 11." Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 156 Cal. 776, 106 Pac. 55; Bamberger v. Burrows, 145 Iowa, 441, 124 N. W. 333; Crawford v. Surety Inv. Co., 91 Kans. 748, 139 Pac. 481; Gilmore v. Samuels, 135 Ky. 706, 123 S. W. 271, 21 Ann. Cas. 611; Barlow Mfg. Co. v. Stone, 200 Mass. 158, 86 N. E. 306; Mulcahy v. Dieudonne, 103 Minn. 352, 115 N. W. 636; Clark v. West, 137 N. Y. App. D. 23, 28, 122 N. Y. S. 380, and cases cited; Elliott Supply Co. v. Green, 35 N. Dak. 641, 160 N. W. 1002; Producers' Coal Co. v. Hillman, 243 Pa. 313, 90 Atl. 144. "Holman v. Updike, 208 Mass. 466, 94 N. E. 689; Petersburg Fire Brick & Tile Co. v. American Clay M. Co., 89 Ohio, 365, 106 N. E. 33. In Bullard v. Eames, 219 Mass. 49, 106 N. E. 584, 586. The court said: "The provision for the manufacture of 1,000 sets for $2,500 was an entire contract. Although the devices were to be delivered at the rate of 100 sets a week, with a provision for an advance payment of $300 by the defendants to the plaintiff at the time of the execution of the contract, and certain weekly payments were thereafter to be made, yet these provisions do not in any way change the nature of the contract or tend to show that it is separable, as where different and distinct articles are sold for different prices. Barlow Mfg. Co. v. Stone, 200 Mass. 158, 86 N. E. 306; Fullam v. Wright, etc., Co., 196 Mass. 474, 82 N. E. 711; Stewart v. Thayer, 168 Mass. 519, 47 N. E. 420, 60 Am. St. Rep. 407." 48 Taylor v. Laird, 1 H. & N. 266; Button v. Thompson, L. R. 4 C. P. 330; Davis v. Preston, 6 Ala. 83; Hill v. Balkcom, 79 Ga. 444, 5 S. E. 200; Jones v. Dunton, 7 Ill. App. 580; White v. Atkins, 8 Cush. 367; Chamblee v. Baker, 95 N. C. 98; Markham v. Markham, 110 N. C. 356, 14 S. E. generally the intention of the parties; and an increasing tendency is observable in this direction; but not a few decisions assume that in the absence of more indication than is furnished by the statement of a rate for the shorter period there is necessarily an indivisible contract for the full term. This seems wrong, but no doubt the nature of the services (as if they are of slight or much diminished value if the whole of a task contracted for is not completed) or business usages may properly lead in particular cases to a holding that such a contract is indivisible. Where the employee under a single contract is to render distinct services but the compensation is not stated, the contract is entire entitling the employee to payment only on completion of all the services. 50 863. When transactions constitute several contracts. The essential test to determine whether a number of promises constitute one contract or more than one is simple. It can be nothing else than the answer to an inquiry whether the parties assented to all the promises as a single whole, so that there would have been no bargain whatever, if any promise 963; Matthews v. Jenkins, 80 Va. 463; La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176. 49 See Boston, etc., Ice Co. v. Ansell, 39 Ch. D. 339; Norris v. Moore, 3 Ala. 676; Turner v. Baker, 30 Ark. 186; Hofstetter v. Gash, 104 Ill. App. 455; DeCamp v. Stevens, 4 Blackf. 24; Davis v. Maxwell, 12 Met. 286; Beach v. Mullin, 34 N. J. L. 343; Lantry v. Parks, 8 Cow. 63; Monell v. Burns, 4 Denio, 121; Tipton v. Feitner, 20 N. Y. 423; Larkin v. Buck, 11 Oh. St. 561; Young v. Watson (Tex. Civ. App.), 140 S. W. 840; Brown v. Kimball, 12 Vt. 617; Diefenback v. Stark, 56 Wis. 462, 14 N. W. 621, 43 Am. Rep. 719. In Martin v. Massie, 127 Ala. 504, 29 So. 31, it was held that where a party entered into a contract with the commission appointed to codify the laws of the State, by which he agreed to perform such parts of the work as might be assigned to him by the commissioner, "and to do all in his power to make the work of the Code a success in every particular," and it was stipulated that his compensation was to be $75 per month, but should not exceed $1,000, however long it may be necessary for him to continue his services, the contract was held an entirety, having no specified time to run short of the completion of the codification of the laws; and where before the completion of the Code, the employee declined to perform the work assigned to him by the commissioner, the refusal constituted an abandonment of the contract, which prevented his recovery of the value of the services which had already been performed by him and accepted by the commissioner. 50 Shafer v. Pratt, 79 N. Y. App. D. 447, 80 N. Y. S. 109; cf. Bartel v. Mathias, 19 Oreg. 482, 24 Pac. 918. |