John Rand & another vs. Ozias H. Mather, 11 Cush. 1

Metcalf, J. The instruction given to the jury, that the evidence offered by the plaintiffs would not authorize the finding of a verdict for them, must have proceeded upon the ground that an agreement, which is void in part by the statute of frauds, is void in toto. And so it was decided in Loomis v. Newhall, 15 Pick. 159, on the authority of Lord Lexington v. Clarke, 2 Vent. 223, and Chater v. Beckett, 7 T. R. 201. The question therefore is,whether that decision was right. And we are all of opinion that it was wrong and must be overruled. The grounds of this opinion are briefly stated in Irvine v.

Stone, 6 Cush. 508. And though what was there said, on this point, was not essential to the decision of that case, and would have been omitted or modified, if Loomis v. Newhall had been then remembered, yet it was the result of a considerate examination of the principles which are uniformly applied in analogous cases, and of the latest adjudications on the precise point now in judgment. A renewed examination of those principles and adjudications has confirmed the opinion then expressed. It is unnecessary to refer to any adjudged case besides that of Wood v.

Benson, 2 Crompt. & Jerv. 94, and 2 Tyrw. 93, which is not distinguishable from the case before us. In that case, the previous decisions in 2 Vent. 223, and 7 T. R. 201, and Thomas v. Williams, 10 Barn. & Cres. 664, were all considered by the court of exchequer, and were held to have been rightly decided upon the ground of a variance between the declaration and the proof. In the first and third of those cases, there was only a single count in the declaration, namely, a special count setting forth the whole agreement alleged to have been made by the defendant.

In the language of Bayley, B. (2 Crompt. & Jerv. 100,) “ the declaration in each of those cases stated the entire promise, as well that part which was void, as that which was good. I think, therefore, that these cases are to be supported on the principle of failure of proof of the contract stated in the declaration; • but that they do not establish that if you can separate the good part from the bad, you may not enforce such part of the contract as is good.” In the case in 7 T.

R. 201, there was, in addition to the special count on the entire promise, a count for money paid by the plaintiff to the use of the defendant. But it was held, without reference to the statute of frauds, that the evidence did not support that count. Lord Lyndhurst said (2 Crompt. & Jerv. 98, 99): “ The case of Thomas v. Williams may, as it appears to me, be supported. Part of the contract in that case was void by the statute of frauds. The declaration stated the entire contract, including that part of it which was void; and therefore the contract, as stated in the declaration, was not proved.

The same observation applies to Lexington v. Clarke, and Chater v. Beckett; and I have no disposition to complain of those decisions, because in none of those cases does there appear to have been any count upon which the plaintiff could recover.” In Wood v. Benson there was not only a special count on the entire agreement, but also a count for goods sold and delivered. And it was decided that, on this last count, the plaintiff was entitled to recover for the goods sold and delivered after the defendant’s promise to pay for them.

In the case at bar, there is no special count on the defendant’s agreement, but the general indebitatus counts only are inserted in the declaration. And a plaintiff may recover on such counts after the terms of a special agreement are performed by him. This has been the settled law ever since the decision in Gordon v. Martin, Fitzg. 302. If there had not been a general as well as a special count, in Loomis v. Newhall, the decision in that case might have been sustained by the authorities on which it was made. There would have been a variance or failure of proof.

But as there was a general count, the case was erroneously decided. The analogies of the law confirm our views of this case, and the decision in Wood v. Benson. In early times it was held that an award, if bad in part, was wholly bad.

But it has long been settled, on satisfactory grounds, that the general validity of an award is not impaired, though some things, which the arbitrator appoints to be done, are impossible, unreasonable, or unlawful, unless, “by the particular defect, a mutuality of interest and advantage, appearing evidently to have been intended by the arbitrator to be given, is destroyed; or where the general substance of the award and the real justice of the case are affected.” Caldwell on Arb. (1st Amer. ed.) 120; Hartnell v. Hill, Forrest, 79, 80.

In contracts which are not affected by statute provisions, the doctrine always has been, as it was announced by Hutton, J. in Bishop of Chester v. Freeland, Ley, 79, to wit, “ at the common law, when a good thing and a void thing are put together in one selfsame grant, the same law shall make such construction that the grant shall be good for that which is good, and void for that which is void.” See Newman v. Newman, 4 M. & S. 66; Bank of Australasia v. Breillat, 6 E. F. Moore, 152.

It is said in many books that if any part of an agreement is contrary to a statute, the whole is void, though it is otherwise where part only is contrary to the rules of the common law; that “a statute is like a tyrant; where he comes, he makes all void.” But this never was true of statutes generally. Twisden, J. in Maleverer v. Redshaw, 1 Mod. 35, stated that he had heard Lord Hobart say that the St. 23 H. 6, was “ like a tyrant,” &c. That statute prescribed the form of a bail bond, and made, in express terms, “ any obligation, in other form, void.” And in Norlon v.

Simmes, Hob. 14, (to which ease Twisden, J. doubtless referred,) it was resolved by Lord Hobart and his associates that “ if a sheriff will take a bond for a point against that law,” (St. 23 H. 6,) “ and also for a due debt, the whole bond is void; for the letter of the statute is so; for a statute is a strict law. But the common law doth divide according to common reason, and having made that void, that is against law, lets the rest stand.” See Kerrison v. Cole, 8 East, 236, 237.

On principle, and according to numerous modern adjudications, the true doctrine is this: If any part of an agreement is valid, it will avail pro tanto, though another part of it may be prohibited by statute; provided the statute does not, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound

part can be separated from the unsound, and be enforced without injustice to the defendant. See opinion of Gibbs, C. J. in Doe v. Pitcher, 6 Taunt. 369; Mouys v. Leake, 8 T. R. 411; Gaskell v. King, 11 East, 165; Wigg v. Shuttleworth, 13 East, 87; Howe v. Synge, 15 East, 440; Greenwood v. Bishop of London, 5 Taunt 727.

In the application of this doctrine, Chancellor Kent says: “ If the part which is good depends upon that which is bad, the whole is void; and so I take the rule to be, if any part of the consideration be malum in se, or the good and the void consideration be so mixed, or the contract so entire that there can be no apportionment.” 2 Kent Com. (6th ed.) 467. The application of this doctrine to cases affected by the statute of frauds, will be found in Mayfield v. Wadsley, 3 Barn. & Cres. 357; Ex parte Littlejohn, 3 Mont. Deac. & De Gex, 182; Wood v.

Benson, before cited—where one part of the agreement was held to be separable from the other; and in Cooke v. Tombs, 2 Anst. 420; Lea v. Barber, 2 Anst. 425, note; Mechelen v. Wallace, 7 Adolph. & Ellis, 49; Vaughan v. Hancock, 3 Man. Grang. & Scott, 766; Irvine v. Stone, 6 Cush. 508—where it was held that the different parts of the agreement could not be separated. New trial ordered