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 payIment 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 . 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.49 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.

or set of promises were struck out. What makes the test sometimes difficult of application is the possibility that though one set of promises originally constituted a contract by itself, it was adopted as part of another agreement made perhaps five minutes later, perhaps a week later, when a new set of promises was added. 51 As has been seen, 52 in cases involving the Statute of Frauds, courts have gone to a considerable length in holding bargains for different articles a single sale. The question essentially is one of fact: Did the parties give a single assent to the whole transaction or did they assent separately to several things? It is sometimes suggested, E3 that the test is whether the nature of the subject-matter of the several things to be performed is such that part performance will be of diminished value unless the rest of the performance is furnished. An inquiry of this sort is an aid in a doubtful case in determining whether several things were contracted for in one bargain, or whether several bargains

51 As in Franklyn v. Lamond, 4 C. B. 637. See on the question of one contract, or several: Spring v. SlaydenKirksey Woolen Mills, 106 Ill. App. 579; Mulcahy v. Dieudonne, 103 Minn. 352, 115 N. W. 636; Mailhot v. Turner, 157 Mich. 167, 121 N. W. 804, 133 Am. St. 333; Mattison v. Connerly, 46 Mont. 103, 126 Pac. 851; Kidd v. New Hampshire Traction Co., 74 N. H. 160, 66 Atl. 127; De Graff v. Mayper, 119 N. Y. S. 657, 65 N. Y. Misc. 185. In Cumberland Glass Mfg. Co. v. Wheaton, 208 Mass. 425, 94 N. E. 803, a written agreement was held one contract though the parties expressly stipulated that each instalment was a separate contract. As there was obviously a single assent to the whole writing, the decision is sound. The opinion of the parties as to how many contracts they have made, or whether they have made any is immaterial. Their purpose doubtless was to permit recovery of the price for one instalment, and this result could be reached by holding the contract one but divisible. In Jordan v. Patterson,

67 Conn. 473, 35 Atl. 521, the plaintiff sent defendant fourteen separate orders for goods, each specifying fully the amount and kind of goods ordered and the terms of payment. The defendant on receipt of the last order sent a letter saying: "We are in receipt of the following contracts," describing the several contracts. This letter was held to be an acceptance of all the orders, creating a single contract. Compare Peoria Mfg. Co. v. Bain Mfg. Co., 76 Mo. App. 76. Here an order was given for twine, and on the same day another order for rope. Acceptance of both orders was made in one letter. This was held not to create such a connection between the two orders that a countermand of the order for the twine released the seller from liability to furnish rope.

52 Supra, § 524.

53 See Norris v. Harris, 15 Cal. 226; Los Angeles Gas & Elec. Co. v. Amalgamated Oil Co., 156 Cal. 776, 106 Pac. 55, 57; Wooten v. Walters, 110 N. C. 251, 256, 14 S. E. 734, 736.

were made, but no more than this can be said. It is certainly possible for parties to make a single contract for several things which have no relation to each other, and the value of which is not increased by being associated together or diminished by separation. It is equally possible to make several contracts for goods which have little use unless associated together."

§ 864. Conditions implied in divisible contracts.

531

If it be granted that upon a true construction a contract is divisible, there is a dependency between the obligations of the buyer and seller in regard to each instalment. Thus, if no time is fixed showing an intention inconsistent with concurrent performance, the seller will not be bound to deliver the instalment until the buyer pays the price, and, conversely, the buyer will not be bound to pay the price unless the seller delivers the goods. If by the terms of the contract, delivery of an instalment is to precede payment for it, or if, as will more rarely happen, payment for an instalment is to precede delivery, the performance of the prior act is a condition precedent to any obligation to perform the subsequent act. Furthermore, the same conditions as to quantity and quality exist as are applicable in contracts and sales generally. Accordingly the buyer need not receive a smaller or a larger instalment than he bargained for; nor need he receive goods of a different kind, or of defective quality.54 If a tender defective in quality or quantity is made, the right to correct the defect and substitute a proper tender depends on principles hereafter stated," as do the rights of a buyer who has received earlier instal

53 It should be observed that a misrepresentation may vitiate more than one contract. In Holliday v. Lockwood (1917), 2 Ch. 47, the court referred to such a case: "Where a purchaser separately acquires two lots of property at an auction, in reliance on an innocent misrepresentation of the vendor as to the second lot, entitling the purchaser to rescission as to that lot, he cannot also rescind the contract for the first lot, unless from the circumstances known and understood by both parties at the time of the sale

the Court can infer that the two transactions were to the knowledge of both interdependent. If, however, the court is satisfied that, apart from the misrepresentation, the particular purchaser would not have bought either lot, it will refuse the vendor specific performance as to the first lot."

54 So held in Jackson v. Rotax Motor Co., [1910] 2 K. B. 937 (C. A.), though a prior instalment of proper quality had been previously offered and accepted.

55 See infra, § 1295.