INDIVISIBLE. That cannot be separated.
The effect of the breach of a contract de pends in a large degree upon whether it is to be regarded as indivisible or divisible ; i. e. whether it forms a whole, the perform ance of every part of which is a condition precedent to bind the other 'party or is com posed of several independent parts, the per formance of any one of which will bind the other party pro tanto. This question is one of construction, and depends on the circum stances of each ease ; and the only test is whether the whole quantity of the things concerned, or the sum of the acts to be done, is of the essence of the contract. It depends, therefore, in the last resort, simply upon the intention of the parties; Broumel v. Rayner, 68 Md. 47, 11 Ad. 833 ; Wooten v. Walters, 110 N. C. 251, 14 S. E. 734, 736. See 9 Q. B. D. 648; Gill v. Lumber Co., 151 Pa. 534, 25 AtL 120; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed• 366 ; Barrie v.
Earle, 143 Mass. 1, 8 N. E. 639, 58 Am. Rep. 126; King Philip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603; Pope v. Porter, 102 N. Y. 366, 7 N. E. 304.
When a consideration is entire and indi visible, and It is against law, the contract is void in toto ; Woodruff v. Hinman, 11 Vt. 592, 34 Am. Dec. 712; Frazier v. Thompson, 2 W. & S. (Pa.) .235. When the considera tion is divisible, and part of it is illegal, the contract is void only pro tanto. In such case, it has been said, the connection between the different contracts is physical, not legal. See, generally, Harr. Contr. 132; Gelpcke v. Dubuque, 1 Wall. (U. S.) 220, 17 L. Ed. 530.
To ascertain whether a contract is divisi ble or indivisible Is to ascertain whether it may or may not be enforced in part, or paid in part, without the consent of the other party. See ENTIRETY ; INDEPENDENT PROM ISES.