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Apportionment

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APPORTIONMENT. The division or dis tribution of a subject-matter in ate parts. Co. Litt. 147; 1 Swanst. 37, n.; 1 Story, Eq. Jur. (13th ed.) § 475 a.

Of Contracts. The allowance, in case of the partial performance of a contract, of a proportionate part of what the party would have received as a recompense for the en tire performance of the contract. See gen erally Ans. Contr. 291.

Where the contract is to do an entire thing for a certain specified compensation, there can be no apportionment ; 9 B. & C. 92 ; Quigley v. De Haas, 82 Pa. 267; Cox v. R. Co., 44 Cal. 18; Coburn v. Hartford, 38 Conn. 290 ; Barker v. Reagan, 4 Heisk. (Tenn.) 590 ; 1 Washb. R. P. 133, 549, 555; 2 id. 302; but see contra, Hollis v. Chapman, 36 Tex. 1. A contract for the sale of goods is entire ; 9 B. & C. 386; Shinn v. Bodine, 60 Pa. 182, 100 Am. Dec. 560; but where there has been a part delivery of the goods, the buyer is lia ble on a quantum valebant if be retain the part delivered. 9 B. & C. 386 ; 10 id. 441; Bowker v. Hoyt, 18 Pick. (Mass.) 555 (but contra in New York and Ohio ; Champlin v. Rowley, 13 Wend. (N. Y.) 258 ; Witherow v. Witherow, 16 Ohio, 238) ; though he may return the part delivered and escape liabili ties. A contract consisting of several dis tinct items, and founded on a consideration apportioned to each item, is several ; Lucesco Oil Co. v. Brewer, 66 Pa. 351. The question of entirety is one of intention, to be gathered from the contract. 2 Pars. Cpntr. (8th ed.) *517. Where no compensation is fixed, the contract is usually apportionable; 3 B. & Ad. 404; Cutter v. Powell, 2 Sm. Lead. Cas. 22, note (q. v. on this whole subject).

Of Annuities. Annuities, at common law, are not apportionable ; Wiggin v. Swett, 0 Mete. (Mass.) 194, 39 Am. Dec. 716 ; 2 P. W. I 501; so that if the annuitant died before the day of payment, his representative is en titled to no proportionate share of the nuity for the time which has elapsed since last payment; 16 Q. B. 357; 12 Ves. 484 ; Heizer v. Heizer, 71 Ind. 526, 36 Am. Rep. 202; Nading v. Elliott, 137 Ind. 261, 36 N. E.

695; 5 U. C. C. P. 364; Mower v. Sanford, 76 Conn. 504, 57 Atl. 119, 63 L. R. A. 625, 100 Am. St. Rep. 1008 ; Henry v. Henderson, 81 Miss. 743, 33 South. 960, 63 L. R. A. 616 ; Irving v. Rankine, 13 Hun (N. Y.) 147 ; Stew art v. Swaim, 13 Phila. (Pa.) 185; but by statute 11 Geo. II. it was enacted that an nuities, rents, dividends, etc., and all other payments of every description made payable at. fixed periods, should be apportioned ; 2 P. Wins. 501; Gheen v. Osborn, 17 S. & R. (Pa.) 173 ; 3 Kent 471. This has been adopt ed by statute or decision in many of the states. Equity introduced some exceptions to the general rule that annuities are not ap portionable, as in the case of those created for maintenance of infants and married wo men living apart from their husbands; Fish er v. Fisher, 5 Clark (Pa.) 178 ; Clapp v. Astor, 2 Edw. Ch. (N. Y.) 379 ; Kearney v. Cruikshank, 117 N. Y. 95, 22 N. E. 580; Chase v. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Rep. 347; 2 P. Wms. 501; the rea son being that by reason of legal disabili ties the annuitants might be unable to get credit for necessaries ; Tracy v. Strong, 2 Conn. 659; and the exception has been ex tended to eleemosynary establishments ; 16 Beay. 385. Another exception is of an an nuity accepted in lieu of dower ; Gheen v. Osborn, 17 S. & R. (Pa.) 171; In re Lacka wanna Iron & Coal Co., 37 N. J. Eq. 26 ; but not when payable at the termination of the yearly periods commencing with the death of testator ; Mower v. Sanford, 76 Conn. 504, 57 All. 119, 63 L. R. A. 625, 100 Am. St. Rep. 1008. See 63 L. R. A. 616, note.

Of Wages. Wages are not apportionable where the hiring takes place for a definite period ; 5 B. & P. 651; 11 Q. B. 755 ; Olm stead v. Beale, 19 Pick. (Mass.) 528; Hansell v. Erickson, 28 Ill. 257; Miller v. Goddard, 34 Me. 102, 56 Am. Dec. 638 ; Sickels v. Pat tison, 14 Wend. (N. Y.) 257, 28 Am. Dec. 527; Hawkins v. Gilbert, 19 Ala. 54; contra, Britton v. Turner, 6 N. H. 481, 26 Am. Dec. 713.

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