151 Pa. 534 | Pa. | 1892
Opinion by
The single question in this cause is whether the contract upon which the plaintiff sued is entire or severable. If it is entire it is conceded that the learned court below properly directed a verdict for the defendant; if severable, it is not denied that the cause ought to have been submitted to the jury. The criterion by which it is to be determined to which class any particular contract shall be assigned is thus stated in 1 Parsons on Contracts, 29-31: “ If the part to be performed by one party consists of several and distinct items, and the price
Applying the test of an apportionable or apportioned consideration to the contract in question, it will be seen at once that it is severable. The work undertaken to be done by the plaintiff consisted of several items, viz., driving logs, first, of oak, and second of various other kinds of timber, from points upon Stony creek and its tributaries above Johnstown to the defendant’s boom at Johnstown, and also driving cross-ties from some undesignated point or points, presumably understood by the parties, to Bethel in Somerset county, and to some other point or points below Bethel. For this work the consideration
The judgment is reversed and a venire facias de novo is awarded.