(concurring). — I concur in the disposition of this case made by the majority of the court; but I do not *168desire to be understood as in anywise agreeing that the plaintiff below, at the time the agreed case was submitted, had any cause of action whatever against the county. The case recites that he had made a contract with the sheriff to publish summons in one hundred and eight delinquent tax cases at $2.40 each, and that he had completed the publication of but forty-five of them. Not having completed his contract he was prima facie not entitled to anything, and his claim for $108 was properly rejected. A party cannot split a demand and have judgment for part of it, or recover upon an entire contract for the fulfilled portion of it. Especially should no such proceeding be permitted when the effect is to deprive the other party of an appeal.
But in this case the county, by its stipulation, has made it to appear that the contract was severable, and if it has lost its appeal no one is to blame but itself.
Anders, J., not sitting.