Irvine v. Stone

| Mass. | Nov 15, 1850

Metcalf, J.

It is admitted by the plaintiff’s counsel that this action cannot be maintained for the price of the coal, because the contract for the sale of it was not in writing. But he seeks to recover pay for the transportation of it from Philadelphia to Boston; an oral contract for the transportation being valid in law. And the main question in the case is, whether the contract for the coal and for transporting it can be severed, so that the plaintiff can recover for the latter.

The position taken for the plaintiff is, that an agreement which is void in part, by the statute of frauds, is not necessarily void in toto ; but that another part thereof, which would be valid, if it stood alone, may be held valid, if it can be separated from the part which is void. And this position is not only correct in principle, and conformable to the analogies of the law, but is also sustained by authority. Mayfield v. Wadsley, 3 Barn. & Cres. 361; Ex parte Littlejohn, 3 Mont. Deac. & DeGex, 182; Wood v. Benson, 2 Crompt. & Jerv. 94; 2 Tyrw. 93. In the latter case, the defendant, Benson, signed a writing, engaging to pay the directors of the Manchester gas-works, or their collector, for all the gas that might be consumed at a certain theatre, during the time it should be occupied by one N., and also to pay for all arrears which were then due. The plaintiff declared specially on this agreement, and added a count for gas sold and delivered. By the English law, the latter part of this agreement was invalid, because no consideration therefor appeared on the writing. But the court sustained the action, on the general count, for the gas that was consumed at the theatre after the making of the agreement. Bayley, B., said, “ I take it to be perfectly clear, that an agreement may be void as to one part, and not of necessity void as to the other.” “ It by no means follows, that because you cannot sustain a contract in the whole, you cannot sustain it in part, provided your declaration be so framed as to meet the proof of that part of the contract which is good.”

The three leading cases cited by the defendants’ counsel, in the present case, to show that a contract void in part, by the statute of frauds, is void in the whole, are Lord Lexington v. Clarke, 2 Vent. 223; Chater v. Beckett, 7 T. R. 201; and Thomas v. Williams, 10 Barn. & Cres. 664. All these cases were considered by the court, in Wood v. Benson, before cited, and were shown to have been rightly decided upon another ground, to wit, that of a variance between the declaration and the evidence. In each of those cases, the declaration stated the entire agreement, including that part of it which was void. Bayley, B., said, “ These cases are to be supported on the principle of the failure of proof of the contract stated in the declaration ; but they do not establish that, if you can separate the good from the bad, you may not enforce such part of the contract as is good.”

The special count, in the present case, sets forth the whole agreement of the parties. Part of that agreement, being within the statute of frauds, is void, and therefore the contract, as alleged, was not proved, and could not be proved. The plaintiff, therefore, cannot recover on that count.

The remaining question is, whether the good part of the contract before us can be separated from the bad, so that the plaintiff can enforce the part which is good, on his general counts. And we are of opinion that, from the nature of the contract, this cannot be done. It is, in its nature, entire. The part which respects the transportation, stands wholly on the other part which respects the sale, and which is invalid; and both must fall together. The transporting of the coal, apart from the sale of it, was of no benefit to the defendants, and could not have been contemplated, by either party, as a thing to be paid for or to be done, except in connection with the sale. The case therefore does not fall within the principle advanced by the counsel for the plaintiff, and sustained by the authorities. The good part of the contract cannot practically be severed from the bad, and separately enforced.

In the case of Lea v. Barber, 2 Anst. 425, note, the defendant made an oral agreement to take an assignment of leasehold premises, to wit, a brick-ground, at one hundred pounds, and to buy the stock, consisting chiefly of half-made bricks, at a valuation to be made by arbitrators. The arbitrators settled the price, but the defendant refused to complete the puretiase An action was brought to recover the price of the stock, the plaintiff admitting that the contract as to the assignment was void by the statute of frauds. But it was held by chief baron McDonald, that the agreement, being in its nature entire, could not be severed; and that, being void as to the land, it was void in toto. This decision was made upon the authority of the preceding case of Cooke v. Tombs, 2 Anst. 420, and obviously proceeded upon the ground that the defendant could not be called on to pay for half-made bricks, which would be of comparatively little value to him, without the brick-ground; in other words, that the nature of the contract was such, that it could not by law be severed, and part of it enforced. The present case is stronger than that, inasmuch as the transportation of the coal was wholly useless to the defendants; whereas the half-made bricks might have been of some value to the defendant in that case.

Judgment on the verdict for the defendants.