from the nature of the contract, or the property that is the subject of it, or upon matters known to both parties, one of them can prove that the one transaction was dependent on the other, the two form one contract, although there may be no express statement to that effect. (j) And the parties by their subsequent dealing may convert two or more distinct contracts into an entire one, as by entering into one contract for the sale of the several subject matters at one aggregate price.(k) Thus where A. purchased by auction three lots of (5) Casamajor v. Strode, 2 My. & K., 722; Poole v. Shergold, 2 Bro. C. C., 118; S. C., 1 Cox, 273; and at common law, Gibson v. (k) Dykes v. Blake, 4 Bing. (N. C.), 463. a court of equity may inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a compensation according to the real state of the transaction. In this case, however, no such question arises; for it appears to me that, although both pieces of ground were bargained for at the same time, we must consider the bargain as consisting of two distinct contracts; and that the one part was sold for £300, and the other for £700." Morton, J., then continued: "Had the plaintiff bid off the cow at one price, and the hay at another, although he had taken one bill of sale for both, it would have come within the principles of the above case." Another case in point is Robinson v. Green, 3 Metc., 159. That was an action of assumpsit to recover compensation for services rendered by the plaintiff to the defendant as an auctioneer, in selling seventy-six lots of wood. The plaintiff was a licensed auctioneer for the county of Middlesex. Two of the lots of wood sold were in the county of Middlesex, and the rest were in the county of Suffolk. The defendant contended that the claim of the plaintiff was entire; that part of it was a claim for services which were illegal, in selling property out of his county; and that the contract being entire, and the consideration, as to part, at least, illegal, the action could not be maintained. But Chief Justice Shaw decided to the contrary, upon the grounds that plaintiff's claim for compensation arose upon each several sale, and was complete upon the conclusion of every such sale. That there was express promise to pay him a fixed sum upon the termination of the entire sale of all the lots; and, therefore, part of the consideration being illegal, it did not avoid the whole contract. See Pars. Contr., vol. 2, p. 30. But where a contract for the sale and delivery of property consists of several agreements, independent of each other, and the vendor fulfills the agreement to be the first performed, but violates all the others. Quære, can he, after he has violated all other agreements, recover the price of the property delivered under the first agreement? McKnight v. Dunlop, 4 Barb., 36. Woods v. Russell. 5 B. & Ald., 942, is also in point. There a ship was built upon a special contract, to the effect that given portions of the price should be paid according to the progress of the work, to wit: part when the keel was laid, part when the light plank, and the remainder when the ship was launched. It was held that there arose a separate contract for each installment, and therefore that when the keel was laid, or any other part of the ship for which an installment was to be paid was completed, that an action could be immediately maintained to recover the installment. In Wright v. Petrie, 1 S. & M. Ch., 282, it was decided that where a contractor, constructing a railroad, is to be paid by installments as the work advances, the contract is not entire, and the contractor may recover a ratable portion of the contract price according to the amount of work done, whenever the contract may be abandoned. See Cunningham v. Morrell, 10 John R., 202; Tompkins v. Elliott, 5 Wend., 496; Goodwin v. Holbrook, 4 id., 337; Dox v. Day, 3 id., 356; Baldwin v. Mann, 2 id., 399; Sage v. Ranney, id., 532; Gould v. Allen, 1 id., 182; Read v. Moore, 19 John. R., 237; Rob v. Montgomery, 20 id., 15; Gazely v. Price, 16 id., 269; Haiden v. Kfeitsinger, 17 id., 293. 100 shares each, and after the sale received the shares, paid the price, and received a bill of parcels describing the transaction as a sale of 300 shares: it was held, that as each lot was knocked down there was a distinct contract for the sale of 100 shares, but that the subsequent dealings showed that the parties treated the transaction as one entire sale of 300 shares.(7) § 807. The mere fact of different prices being fixed for different parts of the subject matter of the contract, will not necessarily make it divisible: so where a person went into a shop and bought various goods at distinct prices for each, the contract was still held to be single. (m) And where one price was fixed for the land, and another (a valuation price)(n) for the timber, and the vendor could not show a title to all the timber by reason of the copyhold tenure of parts of the estate, which were not distinguishable from the freehold; the court held that that was only one contract, that consequently the vendor was only bound to make out the title according to the contract, and that the title to the land was the title to the timber; and, as the conditions of sale provided for the copyhold tenure as to the lands, the contract was enforced as a whole. (0) § 808. In a case in which, by the same contract, A. contracted to sell an estate to B., and B. contracted to sell another estate to A., the contracts in respect of the two estates were held to be independent of one another:(p) whilst in a case of cross contracts for the sale of goods, the court of exchequer held the contracts dependent. (q) § 809. Where the contract itself contains a provision for its piecemeal execution, the contract is treated as divisible. So in a building contract, where the landowner agreed to grant separate leases of separate plots as and when the buildings on each plot reached a certain stage, it was held that the contract might be performed in separate parts, and that it was no answer to the builder or his assign who sued for its performance as regards one plot to show that it was not performed by the builder as regards other plots.(r) (1) Franklyn v. Lamond, 4 C. B., 637. (m) Baldey v. Parker, 2 B. & C., 37. (n) Cf. Richardson v. Smith, L. R. 5 Ch., 648, and supra, § 347. (0) Crosse v. Lawrence, 9 Ha., 462; Crosse v. Keene, 9 Ha., 469. (p) Croome v. Lediard, 2 My. & K., 251. § 810. In like manner, where there are two contemporaneous contracts which the parties intended to be separated, the court will treat them as separate, and will not allow an objection to the one contract to bar the performance of the other. (s) § 811. It is, as we have already seen, a principle of the court, that it will not compel specific performance of executory contracts unless it can at the time execute the whole contract on both sides.' On this principle, where there was a contract between two neighboring landholders to change the course of a stream, and one of the terms of the contract was that, if any damage should accrue to the lands of the defendant from a dam which was agreed to be erected, the plaintiff would give an equivalent in land to the defendant, the quantity of land to be ascertained by arbitrators; this being a thing which the court could not do in præsenti, and the court holding that the parties entering into a covenant to do it would not be a specific performance of the contract, the bill was dismissed, as the whole contract could not be carried into effect. (t) And where the owner of a patented invention entered into a contract with certain persons, who with himself were to form a company, to the promotion of (8) Odessa Tramways Co. v. Mendel, 8 Ch. (t) Gervais v. Edwards, 2 Dr. & War., 80. D., 235. 1 Trust created under a contract.] Where a trust has been created under a contract, which is sought to be enforced, a party cannot claim the benefit of such portions as are to his advantage, and repudiate the rest. Pajol v. McKinlay, 42 Cal., 559; see, also, Kraft v. De Forest, 53 id., 656. Contract as to performance of future acts, which the court cannot compel.] In such case specific performance will be refused. The chancellor said in Gervais v. Edwards, 2 Dr. & W., 80: "As far as the merits of the case go, I would decree the specific performance of the contract; but I do not see how it is possible. If I do execute it at all, I must execute it in toto; and how can I execute it prospectively? The court acts only on the principle of executing it in specie, and in the very terms in which it has been made. Therefore, when you come to the specific execution of a contract containing many particulars, you must see that it is possible to execute it effectively. The court cannot say that when an event arises hereafter, it will then execute it. In the case of a decree for the execution of a contract for the sale of timber, it is no objection that it is to be cut at intervals. That is certain, and there mere delay will not prevent the court from executing it. There the agreement is executed in specie. The court decrees to one the very timber contracted for; to the other, the very price. If I am called on now to execute the agreement, I can only specifically execute a portion, whereas I am bound to execute all. No precedent has been cited; but, indeed, none is necessary. It is a question of principle; and I am clearly of opinion that if I give a decree now, it would not be a specific execution of the contract, but only a declaration that there ought to be a specific execution of it hereafter. I must therefore leave the plaintiff to his remedy at law." See, also, Fallon v. Railroad Co., 1 Dillon, 121; Stocker v. Wedderburn, 3 K. & J., 393. which he was to give his services for two years, and he was to do his best to improve the invention for the benefit of the company, and on the refusal of these persons to go forward with the company, the patentee filed a bill for the specific performance of the contract: the court held, on demurrer, that as it would have been impossible to enforce against the plaintiff the stipulations on his part, he could not sue for performance; and further, that the court could not carry the contract into effect by directing the parties to execute a deed, for the contract was to do certain acts, and not to execute covenants to do them.(u) § 812. So, again, where a contract was entered into by a shipbuilder to alter a ship, and it was agreed that in default of performance by him the owners might enter and make the alterations: default was made by the shipbuilder, whereupon the owners filed a bill to enforce their right to enter and make the alterations: but on demurrer the bill was dismissed.(v) § 813. So wherever that which the plaintiff is to give as the consideration moving from him is something to be done at a future time, and which the court cannot enforce, specific performance of the contract will be refused. (w) § 814. The principle that the court will not partially enforce contracts is illustrated by many other cases. Thus, where there was a partnership contract for an absolute term of years, leaving undefined the amount of capital and the manner in which it was to be provided, this being a contract which in its entirety the court could not enforce, the court refused to enforce it in part, by refusing the representatives of a deceased partner a decree for the dissolution of the partnership and the sale of the partnership property.(x) And in another case the court refused to separate the parts of an award which were capable of specific performance from those which were not. (y) § 815. It is, as will have been already gathered, immaterial whether the things which the court cannot specifically enforce are to be done by the plaintiff or by the defendant. (u) Stocker v. Wedderburn, 3 K. & J., 393. () Merchants' Trading Co. v. Banner, L. R. 12 Eq., 18. (w) Per Wigram, V. C., in Waring v. Manchester, Sheffield and Lincolnshire Railway Co., 7 Ha, 492. (x) Downs v. Collins, 6 Ha.. 418. (y) Nickels v. Hancock, 7 De G. M. & G., See, also, Vansittart v. Vansittart, 4 K. & J, 62, affirmed 2 De G. & J., 249. 300. So where the defendant agreed to grant a lease of a coal mine to the plaintiff, and the plaintiff agreed to employ the defendant as manager, specific performance of the part relative to the lease was refused.(z) § 816. Where the contract stipulates for future acts, but is silent as to any deed to be executed to secure their performance, the court, as we have seen, will not consider the execution of such a deed any performance of the stipulation. Other cases have arisen, where the contract contemplates some deed or obligation. Where there was a contract to execute works of such a nature that the court could not superintend their performance, and in the contract was a stipulation that the contractors should give a bond to secure the performance of the contract: the court, refusing to decree performance of the works, refused also to decree the execution of the bond, as that would have been a piecemeal performance of the contract, and the stipulations as to the works were the substance of the contract, and that as to the bond only incident to them.(a) § 817. But where the contract is to do a thing, and to execute a deed for that purpose, and this deed covers, so to say, the whole of the contract, or the whole of so much of the contract as is incapable of immediate performance, the court will, it seems, enforce the contract by the execution of the deed, though the acts to be done be future and to be done from time to time. (b) The real contract here which the court enforces is a contract to execute the deed. § 818. In Wilson v. The West Hartlepool Harbor and Railway Co., (c) the company agreed to sell to the plaintiff a plot of land near their line, and the contract contained terms as to the company laying down a branch railway, and as to the plaintiff using preferentially the defendants' line of railway. Lord Romilly, M. R., granted specific performance, and his decree was affirmed by the judgment of Turner, L. J., who held that the parties must have intended that the user of railway which was necessarily prospective should be secured by covenant. Knight Bruce, L. J., dissented. The view of Turner, L. J., appears consonant to the ordinary course of business and in furtherance of justice. (z) Ogden v. Fossick, 4 De G. F. & J., 426. (a) South Wales Railway Co. v Wythes, 1 K. & J., 186; S. C., 5 De G. M. & G., 880. 32. (b) Granville v. Bells, 18 L J. Ch., |