When the consideration appears to be valuable and sufficient, but turns out to be wholly false or a mere nullity, or where it may have been actually good, but before any part of the contract has been performed by either party, and before any benefit has been derived from it to the party paying or depositing money for such consideration, the consideration wholly fails, there a promise resting on this consideration is no longer obligatory, and the party paying or depositing money upon it can recover it back. (j) But where the consideration fails only in part, principles analogous to those which govern an inquiry into the adequacy of a consideration would be applied to it. If there * were a substantial consideration left, although much diminished, it would still suffice to sustain the contract. But if the diminution or failure were such as in effect and reality to take away all the value of the consideration, it would be regarded as one that had wholly failed. But if the consideration, and the agreement founded upon it, both consisted of several parts, and a part of the consideration failed, and the appropriate part of the agreement could be apportioned to it, then they might be treated as several contracts, and a recovery of money paid be had accordingly. (k)

(j) Woodward v. Cowing, 13 Mass. 216; Moses v. Macferlan, 3 Burr. 1012; Spring v. Coffin, 10 Mass. 34; Lacoste v. Flotard, 1 Rep. Const. Ct. 467; Wharton v. O'Hara, 2 Nott & McC. 65; Pettibone v. Roberts, 2 Root, 258; Boyd v. Anderson, 1 Overt. 438; Murray v. Carret, 3 Call, 373; Treat v. Orono, 26 Me. 217: Sanford v. Dodd, 2 Day, 437; Colville v. Besley, 2 Denio, 139; Begbie v. Phosphate Sewage Co. L. R. 10 Q. B. 491; affirmed in 1 Q. B. D. 679; Wilson v. Hentges, 26 Minn. 288. The failure of consideration must be total. Charlton v. Lay, 5 Humph. 496; Dean v. Mason, 4 Conn. 428. The measure of damages in such a case is the sum paid; no allowance is to be made for the plaintiff's loss and disappointment. Neel v, Deens, 1 Nott & McC. 210. No action lies on an agreement promising to pay for tuition for a specified time, if, during the whole of that time, the promisor was prevented by illness from attending and receiving the tuition. Stewart v. Loring, 5 Allen, 306. (k) Franklin v. Miller, 4 A. & E. 605, Littledale, J. In this case the declaration stated that defendant, being indebted to certain persons, agreed to repay the plaintiff the amount of all accounts which he should settle for the defendant; and also to pay the plaintiff .£40 a quarter on stated days, till the said debts should be fully settled; and the plaintiff agreed to advance to the defendant £1 per week, and certain other sums, out of the sums of .£40; that, in consideration of the plaintiff's promise, the defendant agreed to perform the contract on his part; that the plaintiff paid debts for the defendant to divers persons (naming them) to the amount of £281; that the whole amount of debts was not yet settled; and that several sums of £40 had become due from the

It is often difficult to say whether a consideration is divisible and capable of apportionment, or so entire that it must stand or fall together. (l) Perhaps no better rule can be given and that part which fails may be regarded, to use the language of the court in one case, "not as a condition going to the essence of the contract," (m) in such case the failure does not destroy the rights growing out of the performance of the residue. But the other * party may have his claim or action for damages arising from such failure. (n) than * that if the thing to be done be in its own nature separable and divisible, and there be no express stipulation or necessary implication which makes it absolutely one thing, defendant under the agreement, which had been paid to the amount of .£160 only, but the rest were unpaid. Plea, as to two of the sums of £40, that, before they became due, the plaintiff had omitted to pay certain of the debts due to creditors of the defendant (naming them), other than the creditors named in the declaration, which he might have paid; and had also omitted, after the last payment of £40, to pay the defendant £1 per week; wherefore the defendant, in a reasonable time, and before the two sums in question were due, rescinded the contract. Replication, that before and at the time of the last payment of £40, the defendant was indebted to the plaintiff in the sum of £50 and more, in respect to the moneys paid by the plaintiff for the defendant as in the first count mentioned; and that the said £40 was insufficient to discharge the amount in which the defendant was so indebted to the plaintiff, and for which the agreement was a security. Held, that the plea was bad, as showing, at most, only a partial failure of performance by the plaintiff, which did not authorize the defendant to rescind the contract. - So in Ritchie v. Atkinson, 10 East, 295, where the master and the freighter of a vessel of 400 tons mutually agreed in writing, that the ship, being every way fitted for the voyage, should, with all convenient speed, proceed to St. Petersburg, and there load from the freighter's factors a complete cargo of hemp and iron, and proceed therewith to London and deliver the same on being paid freight for hemp, £5 per ton, for iron, 5s a ton, etc, one half to be paid on right delivery, the other at three months; held that the delivery of a complete cargo was not a condition precedent; but that the master might recover freight for a short cargo at the stipulated rates per ton; the freighter having his remedy in damages for such short delivery.- Likewise in Roberts v. Havelock, 3 B. & Ad. 404, a ship outward bound with goods, being damaged at sea, put into a harbor to receive some repairs which had become necessary for the continuance of the voyage, and a shipwright was engaged and undertook to put her into thorough repair. Before this was completed he required payment for the work already done, without which he refused to proceed; and the vessel remained in an unfit state for sailing. HeId, that the shipwright might maintain an action for the work already done, though the repair was incomplete, and the vessel thereby kept from continuing her voyage, at the time when the action was brought.