The opinion of the court was delivered, January 3d 1871, by
Williams, J.
— The defence set up by the plaintiffs in error, the defendants below, on the trial of this case, was based on the hypothesis that the contract between the parties is entire, and that no recovery could be had thereon, because the plaintiffs below had not in all respects fully performed their part of the agreement. All the points submitted by the defendants — with the exception of the 6th relative to the measure of damages — and the refusal of which by the court is assigned as error, were predicated of an entire contract. If then the contract was severable, and not entire, the court rightly refused to give the instructions prayed for. The criterion for determining whether a contract is entire or separable is thus stated by Mr. Parsons in his work on the Law of Contracts: “If the part to be performed by one party consists of several 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. * * * But if the consideration to be paid is *355single and entire, the contract must he held to be entire, although the subject of the contract may consist of several distinct and wholly independent items2 Pars. Oont. 29-31. This rule of classification is based on a distinction so simple that it may be easily understood and readily applied. It is the consideration to be paid, and not the subject or thing to be performed, that determines the class to which a contract belongs. Its entirety or separableness depends not upon the singleness of its subject, or the multiplicity of the items composing it, but upon the entireness of the consideration, or its express or implied apportionment to the several items constituting its subject. If the consideration is single the contract is entire, whatever the number or variety of the items embraced in its subject; but if the consideration is apportioned, expressly or impliédly, to each of these items, the contract is severable. Judged by this criterion, there is no difficulty in determining to which class the contract in this case belongs. It is manifest from an inspection of its provisions that singleness or entirety of consideration cannot be predicated of it. It consists of several and distinct items, and the consideration to be paid therefor is several, and apportioned to each item; the whole is dependent upon the amount of the advances made, and of the net proceeds of the oil and other products manufactured by the company. The contract therefore was not. entire but severable; and the court rightly instructed the jury that the plaintiffs might recover the balance of the advancements, less whatever damages the company had sustained by the failure of the plaintiffs, if any, to comply with their contract. Nor was there any error in the refusal of the court to charge as requested in the defendant’s 6th point. If the plaintiffs neglected or refused to furnish the amount of money they agreed to advance, the company had the right to set off the special damages it had sustained by such neglect or refusal. But the court was asked to instruct the jury that they were not limited in their finding to any special damage suffered by such refusal, but might find such damages as they saw proper under all the circumstances in evidence before them. If the court had given this instruction, it would have Been manifest error, for it would have left the jury without any rule or measure for their guidance in assessing the damages.
The refusal of the court to allow the defendant’s witness to answer the question proposed to him, was properly overruled for the reason given by the learned judge — that it was an offer to set off damages arising out of a collateral agreement between the. defendant and one of the plaintiffs.
Judgment affirmed.