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an entire and unapportionable agreement. Beach, on the Modern Law of Contracts, says:

"A familiar and well-settled principle of the common-law is that an entire contract cannot be apportioned. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. The question depends, to some extent, 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. No precise rule can be laid down for the solution of the question. When the price is expressly apportioned by the contract, or the apportionment may be implied by law to each item to be performed, the contract will generally be held to be severable." Section 731.

According to 2 Elliott on Contracts, § 1543, the authorities generally hold that the question whether a contract is entire or several depends largely upon the intention of the parties.

In our opinion, there can be no doubt as to the severability of this contract. It provides, in terms, that:

"On the 10th of each month payment (is) to be made for all logs delivered to the respective mills of said parties of the second part during the preceding month, less any amount that may be due said second parties by reason of the advance money above mentioned."

We are of the opinion that, as the logs were delivered, so much of the contract was performed, and on the 10th of the month a certain amount became due and payable to the plaintiffs. It is quite apparent from the contract itself, and from this record, that this provision in the contract was placed therein so that the plaintiff company might receive the necessary funds to carry on its operations as the work progressed, and it is the plaintiff's claim that the failure of the defendants to pay the amount claimed

to be due would and did result in serious embarrassment to it in the prosecution of the work.

It is true that there was a misunderstanding between the parties as to the construction of the contract in regard to the advances which were made on the up-river scale, but this question was definitely determined against the contention of the defendant by this court in the Sands Case, supra; it being held that the millmen could deduct only the advances from the contract price due on the logs delivered. And this construction must be said to bind the parties from the inception of the contract. This disagreement as to the construction of the contract led to negotiations between the parties, and resulted in an advance in 1908 by the log owners to the plaintiff of $15,000, without prejudice to the claims of either of the parties. (This is discussed at some length in the Sands Case.) But in 1909, upon the failure on the part of the defendants to pay the amount claimed to be due for logs delivered, the plaintiffs refused to proceed further under the contract until such amounts claimed to be due were paid, which immediately resulted in the litigation and the construction of the contract by this court in the Sands Case.

As we have concluded that the contract is an apportionable one, in our opinion it follows that the plaintiff had a right to bring suit for the amount claimed to be due in 1909 for logs delivered; and the defendants, having pleaded the general issue and having given notice of set-off and recoupment, had the right to show that they had overpaid the plaintiff for logs raised and skidded, and set off the excess against the amount due the plaintiff, and also to show breaches of the contract by the plaintiff and recover their damages, if any there were. These questions were questions of fact, and were submitted to the jury with proper instructions.

Being satisfied that the case was tried without prejudicial error, we affirm the judgment of the court below.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

SMITH v. CHASE & BAKER PIANO MANUFACTURING CO.

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TRACT NOT TO BE PERFORMED WITHIN A YEAR. The statute of frauds precludes recovery upon a contract to perform services for a term of three years at a stated salary which was not in writing, but the plaintiff was entitled to bring an action upon the quantum meruit for services actually performed: no implied agreement would sustain a judgment for services to be performed at a subsequent time, the contract being absolutely void under such statute.

Error to Oakland; Smith, J. Submitted April 17, 1914. (Docket No. 56.) Decided April 6, 1915.

Assumpsit by Joseph C. Smith, as administrator of the estate of John L. Smith, deceased, against the Chase & Baker Piano Manufacturing Company for services performed. Judgment for plaintiff, on a directed verdict, for an insufficient amount, and he brings error. Affirmed.

Fred A. Baker, for appellant.

F. H. & G. L. Canfield, for appellee.

BIRD, J. Plaintiff's intestate made an oral agreement with defendant to become superintendent and manager of its Holly plant, from the 1st day of February, 1910, for a term of not less than three years, at an annual salary of $5,000, to be paid in monthly installments. He worked under this oral agreement until the middle of May, 1912, and received his pay therefor to May 1, 1912. Soon after July 1, 1912, he commenced this suit and recovered his monthly salary for the months of May and June. On writ of error to this court, the case was reversed for the reason that the plaintiff declared and relied upon an express contract, and therefore could not recover on an implied one. Inasmuch as his recovery for the month of June was on an implied contract, the verdict was set aside. 175 Mich. 371 (141 N. W. 563). Upon the return of the case to the trial court, the record was amended by substituting the administrator for the intestate as plaintiff, and by adding the following paragraph to the declaration:

"And the plaintiff expressly avers that heretofore, to wit, on the 1st day of February, 1912, the said defendant agreed to employ the plaintiff for the whole of year ending February 1, 1913, at the annual salary of $5,000, payable in monthly installments, and the plaintiff agreed to serve the defendant for the whole of said year, to wit, at Holly, in said county of Oakland."

A retrial was then had, and the same testimony that was given upon the first trial was introduced and read in evidence. Plaintiff's counsel then insisted that, by reason of the amendment, he had the right to recover on an implied contract for services for the month of June. It was conceded by defendant's counsel that the plaintiff was entitled to recover services for the month of May, the services having been rendered. The sole evidence relied upon to support the implied contract was the void contract, and the in

ference to be drawn from the fact that defendant permitted plaintiff to enter upon a third year and paid him for the months of February, March, and April. The trial court, being of the impression that no different case was made from the first one, directed a verdict for the plaintiff for one month's salary for the month of May.

Passing over the question of the propriety of the amendment, we are of the opinion that there was no competent proof to sustain the case on the theory of implied contract. If one makes a contract for services which is void under the statute, he can recover at the contract price for the services actually rendered. Fuller v. Rice, 52 Mich. 435 (18 N. W. 204); Smith v. Manufacturing Co., 175 Mich. 371 (141 N. W. 563). Or, if he has rendered services in reliance upon a void contract, he may recover the value of the services actually rendered, under the common counts. Fuller v. Rice, supra; Moore v. Nason, 48 Mich. 300 (12 N. W. 162). But we know of no rule of law which would permit an implied contract to pay for services which have not been actually rendered to be built up out of a void contract.

We think the view taken by the trial court was the proper one, and the judgment will be affirmed.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, MOORE, and STEERE, JJ., concurred.

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