A contract is entire or divisible depending upon the intention of the parties to be gathered from the agreement itself and the circumstances surrounding its execution (Portfolio v. Rubin,233 N.Y. 439, 444-445; Ming v. Corbin, 142 N.Y. 334, 341;Pierson v. Crooks, 115 N.Y. 539, 555). (See, also, 3 Williston on Contracts [Rev. ed.], §§ 860A, 862.)
The parties to the written agreement here in suit were careful to provide that the contract price was to be paid in specified installments which, after the initial payment, were in varying amounts payable upon completion of designated stages of the work. The contracting parties thus indicated their intent to be that the part to be performed by the plaintiff was to consist of several distinct and separate items and that the price to be paid by the defendants was to be apportioned accordingly to fall due when each specified stage of the work should be completed. (Ming v. Corbin, supra, p. 340.)
Concluding, as I do, that such a contract is divisible in character (see Foshay v. Robinson, 137 N.Y. 134, 137;Tipton v. Feitner, 20 N.Y. 423, 430), I would affirm the judgment.
LOUGHRAN, Ch. J., DYE, FULD and BROMLEY, JJ., concur with DESMOND, J.; LEWIS, J., dissents in opinion in which CONWAY, J., concurs.
Judgments reversed, etc. *Page 308