A contract is said to be apportionable when the amount of consideration to be paid by the one party depends upon the extent of performance by the other. The question of apportionment must be carefully distinguished from that of entirety, considered in the last section. The latter must always be determined before the former can properly arise. For the question of apportionment always addresses itself to a contract which has already been ascertained not to be single and entire.

When parties enter into a contract by which the amount to be performed by the one, and the consideration to be paid by the other, are made certain and fixed, such a contract cannot be apportioned. Thus, if A and B agree together that A shall enter into the service of B, and continue for one year, and that B shall pay him therefor the sum of one hundred dollars; and A enters the service accordingly, and continues half of the year, and then leaves, he will not be entitled to recover anything on the contract. (f) This is an old and deep-rooted principle of the common law, and though it sometimes has the appearance of harshness, it would be difficult to contend against it upon principle. We have frequently had occasion to state, that courts of justice can only carry into effect such contracts as parties have made. They cannot make contracts for them, or alter or vary those made by them. And it would seem difficult for a court, without travelling out of its true sphere, to say, that because B has agreed to pay one hundred dollars for one year's service, he has therefore agreed to pay at that rate, or any particular sum, for a shorter period. In other words, it cannot reasonably be presumed that the parties intended that the amount of consideration to be paid by B should depend upon the amount of service rendered by A, when both of these were definitely fixed by the parties. The only agreement entered into by B was to pay A the sum of one hundred dollars, when the latter should have served him one year. Therefore, until the full year's service has been rendered, the casus foederis does not arise.

(e) Miner v. Bradley, 22 Pick. 457. In this case the defendant put up at auction a certain cow and 400 pounds of hay, both of which the plaintiff bid off for $17, which he paid at the time. He then received the cow, and afterwards demanded the hay, which was refused by the defendant, who had used it. This action was brought to recover back the value of the hay. The defendant objected that the contract was entire; that the plaintiff could not recover back the price paid or any portion of it, without rescinding the whole contract, and that this could not be done without returning the cow. And this objection was sustained by the court. Morton, J., said: "There may be cases, where a legal contract of sale covering several articles may be severed, so that the purchaser may hold some of the articles purchased, and not receiving others, may recover back the price paid for them. Where a number of articles are bought at the same time, and a separate price agreed upon for each, although they are all included in one instrument of conveyance, yet the contract, for sufficient cause, may be rescinded as to part, and the price paid recovered back, and may be enforced as to the residue. But this cannot properly be said to be an exception to the rule; because in effect there is a separate contract for each separate article. This subject is well explained and the law well stated, in Johnson v. Johnson, 3 B. ft P. 162." The learned judge then stated that case, and 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. But such was not the fact. And it seems to us very clear that the contract was entire; that it was incapable of severance, that it could not be enforced in part and rescinded in part; and that it could not be rescinded without placing the parties in statu quo." See further on the subject of entirety, Jones v. Dunn, 3 Watts & S. 109; Biggs v. Wisking, 14 C. B. 196, 25 E. L. & E. 257; White v. Brown, 2 Jones (N. C), 408; Dula v. Cowles, id. 454.

It is to be borne in mind, however, that this is only a rule of construction, founded upon the intention of the parties, and not a rule of law which controls intention. Therefore, if the parties wish to make a contract which shall be apportionable, there is nothing to hinder their doing so, provided they make their intention sufficiently manifest. Thus, if A and B make a contract, by virtue of which A is to enter into the service of B, at the rate of ten dollars per month, and continue so long as it shall be agreeable to both parties, such contract is clearly apportionable; for neither the extent of service nor the amount of consideration is fixed by the contract, but only a certain relation and proportion between them. And contracts have been held apportionable in which the service to be performed was specified and fixed, but the consideration to be paid was left to be implied by law. But this cannot be laid down as a general rule. (g)

(f) Ex parte Smyth, 1 Swanst. 387, and n. (a). We have already considered this point in an earlier part of this volume, b. iii. ch. 9, sec. 1.

(g) Roberts v. Havelock, 8 B. & Ad. 404. In this case a ship belonging to the defendant having come into port in a damaged state, the plaintiff was employed and undertook to put her into thorough repair. Before the work was completed, a dispute arose between the parties, and the plaintiff refused to proceed until he own wrong, and screen himself from payment for what has been done under the contract. The law, therefore, will imply a promise on his part to remunerate the other party for what he has done at his request; and upon this promise an action may be brought. (h)

* We have seen that when parties make a contract which is not apportionable, no part of the consideration can be recovered in an action on a contract, until the whole of that for which the consideration was to be paid is performed. But it must not be inferred from this that a party who has performed a part of his side of a contract, and has failed to perform the residue, is in all cases without remedy. For though he can have no remedy on the contract as originally made, the circumstances may be such that the law will raise a new contract, and give him a remedy on a quantum meruit.