Durant v. Snyder

• Decision Date: 12 July 1944
• Docket Number: 7111
• Citation: 65 Idaho 678,151 P.2d 776
• Parties: E. X. DURANT and NELLIE G. DURANT, Respondents, v. H. C. SNYDER and J. W. BRIERLEY, Appellants
• Court: Idaho Supreme Court

151 P.2d 776

65 Idaho 678

E. X. DURANT and NELLIE G. DURANT, Respondents, v. H. C. SNYDER and J. W. BRIERLEY, Appellants

No. 7111

Supreme Court of Idaho

July 12, 1944

65 Idaho 678 at 691.

Original Opinion of January 17, 1944, Reported at 65 Idaho 678. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Dunlap, J. Holden, C. J., and Ailshie, J., concur. Budge and Givens, JJ., dissent.

OPINION

Dunlap, J.

ON REHEARING

Upon motion of appellants, a rehearing was granted in this case and the cause was resubmitted at the Lewiston Term on May 25th, 1944.

Appellants have filed an able and exhaustive brief, devoted almost exclusively to the contention the Court erred in its determination that the contract in question was severable and divisible.

It is urged that the Court has misconstrued the intention of the parties to the contract; that apportionment of consideration is not conclusive or controlling in determining whether a contract is entire or severable, and appellants cite Page on Contracts, 2d Ed., Vol. 4, p. 3613, sec. 2088, reading as follows: "The rule that apportionment of consideration determines the character of the contract is not an arbitrary rule, however, but it is merely a convenient rule for ascertaining the intention of the parties in most cases. The consideration may be apportioned but the remaining provisions of the contract may show that the contract is entire."

The same authority, sec. 2088, p. 3611, Vol. 4, states: "One of the most certain of the single tests for determining the intention of the parties is whether the consideration on the one side is apportioned to each of the different covenants on the other, or whether the consideration on the one side is the entire consideration for all the covenants upon the other side. If the consideration agreed upon for each covenant is apportioned to each covenant separately, the contract is prima facie severable. If the consideration is not apportioned to the various covenants on the part of the adversary party, the contract is prima facie entire."

In Pettigrove v. Corvallis Lumber Mfg. Co., 143 Ore. 33, 21 P.2d 198, the court said: "It is well settled by the decisions cited and by the courts and law writers generally, that, 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."

In considering this matter, Williston on Contracts , Rev. Ed., Vol. 3, p. 2416, sec. 862, states: "In case of a contract naturally and accurately severable (such as a contract for the sale of a bill of goods at certain prices for each article) courts incline to hold the contract severable, and to grant a recovery for that portion of the goods actually delivered, less damages for the non-delivery of any portion not delivered. Under all ordinary circumstances this course will result in exact justice. The vendor will receive payment for his goods which the vendee has retained, and the vendee will receive compensation for any damage which he has actually suffered."

In Mattison v. Connerly, 46 Mont. 103, 126 P. 851, the court said: "In Hughes v. Mullins, 36 Mont. 267, 92 P. 758, 13 Ann. Cas. 209, this question was before the Court and the rule was then announced as follows: 'We think a correct rule for determining whether a contract is entire or severable is announced in 2 Parsons on Contracts (8th Ed.), p. 517, as follows: 'If the part to be performed by one party consists of several separate and distinct 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. * * * And if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.'"

It is strongly urged here that the contract in question is entire. In many cases it is difficult to determine whether a contract is entire or severable. It is impossible to lay down a rule which will apply to all cases, therefore each case depends upon the terms of the contract involved. (17 C. J. S., Sec. 331, p. 787.)

Appellants direct our attention to specific clauses in the contract and argue therefrom that these clauses indicate the sale of the merchandise and lease of the real property and equipment are so intertwined as not to admit any intendment of any of the parties to the contract that the same were to be severable.

In 17 C. J. S., Sec. 331, p. 786, the author states: "A contract may be indivisible in certain aspects or for certain purposes although divisible in other aspects or for other purposes. Thus a contract may be entire in the sense that there is but one agreement covering all the terms, and divisible in the sense that the performances are divided into different groups, each set embracing performances which are the agreed exchange for each other." See also Bianche Bros. v. Gendron, 292 Mass. 438, 198 N.E. 767, 107 A. L. R. 953; In re Marshall's Garage, CCA (2d) Cir., 63 F.2d 759; Restatement of the Law, (Contracts) Vol. 1, Sect. 266, pp. 385, 386; Williston on Contracts, Rev. Ed., Vol. 4, Sec. 860-A, p. 2408.

In Armstrong v. Illinois Bankers Life Co., 217 Ind 601, 29 N.E.2d 415, the court said: "In determining whether the questioned instrument shall be considered as constituting but one entire contract or as constituting two or more separate and independent contracts, courts and textbook writers have laid down several rules to guide us. It is said -- primarily the question of whether a contract is entire or severable is one of intention to be determined from the language which the parties have used, and also the subject matter of the agreement. Another inquiry is, whether the parties reached an agreement regarding the various items as a whole or whether the agreement was reached by regarding each item as a unit. (2 Williston on Contracts, Sec. 863.) Another important factor in the determination of the question is whether the consideration is stated to be...