The question whether a contract is entire or separable is often of great importance. Any contract may consist of many parts; and these may be considered as parts of one whole, or as so many distinct contracts entered into at one time, and expressed in the same instrument, but not thereby made one contract. No precise rule can be given by which this question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.

If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. (b) 1 And the same rule holds where the price to be

(x) Alsagar v. St. Katherine's Dock Co. 14 M. & W. 794, 799; Howland v. Comm. Ins. Co. Anthon, N. P. 46; Harper v. Albany Mutual Ins. Co. 17 N. Y. 394; Cushman v. North Western Ins. Co. 34 Me. 487; Wallace v. Ins. Co. 4 La. 289; Goicoechea v. La. State Ins. Co. 18 Mart. (La.) 51, 55; Hunter v. General Mutual Ins. of N. Y. 11 La. An. 139.

(a) Goix v. Low, 1 Johns. Cas. 341.

(b) This point is well illustrated by the case of Johnson v. Johnson, 3 B. & P. 162. In that case the plaintiff had purchased from the same persons two parcels of real estate, the one for £700, the other for £300, and had taken one conveyance for both. After having paid the purchase-money and taken possession, he was evicted from the smaller parcel, in consequence of a defect in the title derived under the purchase, and thereupon brought an action for money had and received to recover back the £300, at the same time refusing to give up the parcel of land for which £700 had been paid. And the court held that he was entitled to recover. Lord Alvanley, in delivering the judgment of the court, said: "My difficulty has been, how far the agreement may be considered as one contract for the purchase of both sets of premises, and how far the party can recover so much as he has paid by way of consideration for the part of which the title has failed, and retain the other part of the bargain. This for a time occasioned doubts in my mind; for if the lat1 See Lucesco Oil Co. v. Brewer, 66 Penn. St 351, where the text is quoted with approval by Williams, J. See also Quigley v. De Haas, 82 Peon. St. 267, 273; Scott v. Kittanning Coal Co. 89 Penn. St 231.

♦paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire. (c) But the mere fact that tar question were involved in this case it would be a question for a court of equity. If the question were how far the particular part of which the title has failed formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered in a court of law to say that he would retain all of which the title was good, and recover a proportionable part of the purchase-money for the rest. Possibly the part which he retains might not have been sold, unless the other part had been taken at the same time; and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. But 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." And see, to the same point, Mayfield v. Wadsley, 8 B. ft C. 867. The statement in the text, that where the subject of the contract consists of several distinct and independent items, and no express agreement is made as to the consideration to be paid, the contract may be considered as severable, is well illustrated by the case of Robinson v. Green, 8 Met 169. 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. Sed non allocator, for, per Shaw, C. J.: "The plaintiff does not claim on an entire contract. The sale of each lot is a distinct contract. The plaintiff's claim for a compensation arises upon each several sale, and is complete on such sale. If there were an express promise to pay him a fixed sum, as a compensation for the entire sale, it would have presented a different question. Where an entire promise is made on one entire consideration, and part of that consideration is illegal, it may avoid the entire contract. But here is no evidence of a promise of one entire sum for the whole service. It is the ordinary case of an auctioneer's commission, which accrues upon each entire and complete sale. We do not see how the question can be answered, which was put in the argument, namely, supposing the plaintiff had stopped after selling the two lots lying in South Reading, which it was lawful for him to sell, would he not have been entitled to his commission? If he would, we do not perceive how his claim can be avoided, by showing that he did something else on the same day, which was not malum in se, but an act prohibited by law, on considerations of public policy. The court are of opinion that the plaintiff's claim for a quantum meruit may be apportioned, and that he is entitled to recover for his services in the sale of the two lots." And see Mayor v. Pyne, 8 Bing. 285; Perkins v. Hart, 11 Wheat. 237, 251; Withers v. Reynolds, 2 B. ft Ald. 882; Sickels v. Patterson, 14 Wend. 257; McKnight v. Dunlop, 4 Barb. 36, 47 ; Snook v. Fries, 19 id. 313; Carleton v. Woods, 8 Foster, 290; Robinson v. Snyder, 25 Penn. St. 208. For the law applicable to cases where property is purchased in lots at auction at separate biddings, see ante, vol. i. p. * 496.