Page:Federal Reporter, 1st Series, Volume 4.djvu/598

 •6&e FEDERAL REPORTER. �parts of one whole, or as so many distinct contracta, 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 case by considering the language employed and the subject- matter of the contract. If the part te be performed by one party consists of several distinct and separate items, and the priee 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. » • * But the mere f act that the subject of the contract is sold by weight or measure, and the value is aseertained by the price afSxed to each pound or yard or bushel of the quantity contracted for, will not be sufûcient to render the contract severable. " �In Miner v. Bradley, '2i'2i Pick, 457, it was held that a sale at auction of a cow and lot of hay, at one bid, for $17, was an entire contract ; the court saying that, "as the cow and the hay were bought together for one gross sum, there are no means of ascertaining h,ow much was intended for the one and how much for the other." �In Johnson v. Johnson, 3 Bos. & Pul. 162, the plaintiff pur- chased two separate parcels of real property, the one for £300 and the other for £700 — each being distinctly valued — and took one conveyance of both. The title to one of the parcels proving invalid he brought an action to recover the considera- tion thereof, and prevailed ; the court, per Lord Alvanley, say- ing : "If the question were how far the part of which the title bas failed formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered to say he would retain ail of which the title was good and recover a proportionable part of the purchase money for the rest. Possibly the part which he retains might not bave been sold unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to the various circumstances connected with it. * ����
 * * In this case, however, no such question arises; for it