7 F. 81 | U.S. Cir. Ct. | 1881
The demurrer raises the question whether suit can be maintained on the contract upon the facts disclosed by the petition. The plaintiff sues after the expiration of the time within which, by the terms of the contract, the
“ 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 ease by considering the language employed and the subject-matter of the contract.” 2 Pars Con. 517.
From what appears upon the face of this contract we are to determine whether it was the intention of the parties to make one contract for the construction of a railroad, or two separate contracts,—one for the grading, and the other for the bridging, tying, and ironing of the roadway through the precincts of Ohio and Falls City. It seems pretty clear that the subject-matter of the contract was an entirety, to-wit, a completed railroad. The case is not like many we find cited in the books, in which two or more separate and distinct articles of property are sold and conveyed by a single instrument, for separate and distinct prices, at one and the samo time. In such cases it often appears that the purchase of each article was a separate and distinct transaction, and intended to be so regarded by the parties to the contract. There is in such cases no necessary connection between the several articles sold and conveyed. There is nothing from which it can be inferred that it was not the intention of the purchaser to
But, independently of this consideration, there can, I think, be no doubt upon another question which is presented by this record. The contract itself shows no mutuality. The de<
The demurrer to the petition is sustained.