severability of contract

The quality in a contract in contrast with entirety. The quality which renders the contract susceptible to division into sets to be performed, each set embracing a performance on the one side which is an agreed exchange for performance on the other. Restatement, Contracts § 266, Comment e. A quality which renders enforceable a valid part, it availing pro tanto, although another part may be invalid. 17 Am J2d Contr § 230. A quality which characterizes an agreement reached by the parties through negotiations wherein each item or some of the items were regarded as units, as distinguished from an agreement whereof the items were regarded from no point of view other than that in which they were regarded as a whole, as an entirety without divisibility. A quality to be determined according to the intention of the parties as determined by a fair construction of the contract itself, by the subject matter to which it has reference, or the circumstances of the particular transaction giving rise to the question. 17 Am J2d Contr § 325. As a general rule a severable contract is one in its nature susceptible of division and apportionment. Whether a contract is entire or separable is a question very largely of intention, which intention is to be determined from the language the parties have used and the subject matter of the agreement. The divisibility of the subject matter or the consideration is not necessarily conclusive, though of aid, in arriving at the intention. Where it reasonably appears from the language of the contract or from its terms that the parties intended that a full and complete performance should be made with reference to the subject matter of the contract by one party, in consideration of the obligation of the other party, to the contract, it is said to be entire. Quarton v American Law Book Co. 143 Iowa 517, 121 NW 1009. A contract may be severable as to some of its terms, or for certain purposes, but indivisible as to other terms or for other purposes. Simmons v California Institute of Technology, 34 Cal 2d 264, 209 P2d 581. In construing a contract to determine whether it is entire or severable, many of the courts have regarded the singleness or apportionability of the consideration as an important test-that is, if the consideration is single, the contract is entire, but if the consideration is expressly or by necessary implication apportioned, the contract is severable. 17 Am J2d Contr § 326. A plaintiff can sue once; he must then set up his whole cause of action. He cannot sue in successive actions for different parts of the same thing. But separate independent agreements may be included under one contract, and if they are divisible, suit upon one agreement does not preclude suit upon the other. The usual test of severability is whether the consideration is so segregated that it may be severally applied to each independent covenant in the contract. Hospelhorn v Circle City Coal Co. (CA6 Ky) 117 F2d 166.