I am in accord with that part of the majority opinion holding that the amended findings were properly made by the trial court, and that the final agreement reached by the parties resulted in a single contract for the entire heating system. From that part of the opinion holding that the single contract is severable, and therefore susceptible of partial rescission, I respectfully dissent.
The majority opinion, in determining whether or not the single contract is severable, relies principally upon the lower court's finding: "It was expressly agreed between plaintiff and defendant that the sum of $250.00 was to cover the cost of installing said air ducts, registers and fittings, including the hood for said furnace, and that the sum of $687.50 was agreed upon as the purchase price * * * of said heating plant."
To sustain their contention, the majority opinion citesThompson v. Fesler, 74 Ind. App. 80, 123 N.E. 188, 191, which says: *Page 150 "The test chiefly relied upon is whether the parties have apportioned the consideration on the one side to the different covenants on the other." An examination of the opinion in that case discloses that its holding depends upon the intention of the parties to the contract, citing in support thereof the case ofGilmore Co. v. W.B. Samuels Co., 135 Ky. 706,123 S.W. 271, 274, 21 Ann. Cas. 611, wherein it was said: "In determining whether a contract shall be treated as severable or as an entirety the intention of the parties will control, and this intention must be determined by a fair construction of the terms and provisions of the contract itself."
The court in its opinion also quotes with approval from 2 Parsons on Contracts, page 517: "The question whether a contract is entire or separable is often of great importance. Any contract may consist of many parts; and they may be considered as parts of one whole, or as so many different contracts entered into at one time and expressed in the same instrument, but not thereby made one contract. No precise rule can be given by which the question in a given case may be settled. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. * * * If the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items." Therefore, as I view it, the Fesler Case is not authority for the proposition that the sole test is the ability to apportion the consideration on one side, to the different covenants on the other.
In Los Angeles Gas Elec. Co. v. Amalgamated Oil Co.,156 Cal. 776, 106 P. 55, 57, the court discussed the rule and concluded: "It is, no doubt, well settled * * * that `when the price is expressly apportioned by the contract, or the apportionment may be implied by law, to each item to be performed, the contract will generally be held to be severable.' [Citing cases.] But this rule is not universal. It is subject to the limitation that a contract will be treated as entire, even when *Page 151 the obligations of the one party consist of different acts to be separately paid for, where the nature and character of the agreement show that it was intended to be entire." (See, also,Waddell v. White, 51 Ariz. 526, 78 P.2d 490.)
This court in Purdin v. Westwood Ranch Livestock Co.,67 Mont. 553, at page 557, 216 P. 326, at page 327, said: "Whether or not a contract is severable is a matter of intention, and the intention is determined from the language used and the subject-matter. This statement of the law is so elementary that no citations of authorities are necessary." Therefore, whether the consideration be expressly or by necessary implication apportioned, the contract is not necessarily to be regarded as severable. It is not the final test, but is merely a means of determining the ultimate question: What was the intention of the parties?
There is ample evidence here, as I view it, to uphold the lower court's finding of one indivisible contract for the installation of the heating plant. The record discloses, in addition to that pointed out in the majority opinion, the following testimony by the defendant Routledge. I quote: "Mr. O'Keefe [plaintiff] first wanted me to have the air ducts installed, and he not have anything to do with them, but I told him I would rather have him control the whole thing, and that if he would arrange to have the air ducts installed, that I would pay him at that time for the air ducts and the freight on the furnace."
The testimony of Mrs. Routledge, a witness for the defendant, was as follows on that point: "At the second conversation the doctor told Mr. O'Keefe that he did not want to have anything to do with the contract that had to do with putting in this tinwork. Dr. Routledge told Mr. O'Keefe that he would rather that he would take the contract himself and do that tinwork. Dr. Routledge insisted that Mr. O'Keefe should put in a complete heating plant. Dr. Routledge insisted that he wanted a complete job, a complete heating plant, and that he wanted everything in connection with it. The complete heating plant would, of course, include such a device for generating the heat, such as the pipes and registers. He would have to have a complete *Page 152 heating system. * * * Dr. Routledge told Mr. O'Keefe that he was not going to be bothered attending to the tinwork with one outfit, and with the furnace with another."
The testimony of the plaintiff himself on that point was as follows: "Dr. Routledge told me he wanted the contract let in one unit. I did not tell the doctor that I would attend to the installation of the tinwork and that it would cost him two hundred fifty dollars. I did not tell him that the cost of the tinwork was two hundred fifty dollars, until the next fall when he wanted to take the furnace out. When the doctor told me he was going to take the furnace out, he asked me what I had paid for having that work done and I told him two hundred fifty dollars. I paid the Dart Hardware a little more than I mentioned. I paid extra for the pipes that went into the flues and the pipes I installed in the second water jacket. I paid two hundred fifty dollars for the tinwork. * * * At the time I had the first conversation with Mr. Routledge at his house he asked me what the furnace would cost, what I would take to install him a complete heating plant in his home including everything."
It is not the province of this court to reject the findings of a lower court so long as there is ample evidence to sustain that court's findings. As may be seen from the testimony of the parties themselves, the defendant, by his own statements, would not have entered into the purchase of the furnace without the agreement by the plaintiff to install the distributing system. The language of the parties, the subject matter, all tend to indicate that the parties, at the time of entering into the contract, intended that the contract should be entire and indivisible. As may been seen, the defendant insisted that the sole responsibility under the contract be placed upon the plaintiff, and that the subject matter be contained in but one contract. (Fancher v. Board of Commrs., 28 N.M. 179,210 P. 237; Waddell v. White, supra; Leeker v. Marcotte,41 Ariz. 118, 15 P.2d 969.)
We then come to the question: Did the defendant effect a rescission by tendering back a part of that which he received *Page 153 under the contract? The lower court found that the defendant restored the furnace proper but retained the distributing system.
The general rules of rescission have been quoted in the majority opinion. Courts have universally held that if it is impossible to restore the consideration, or if it becomes impractical so to do, the rescinding party is then excused from the necessity of making restoration. In the case before us, as I view it, we cannot say that the tinwork could not have been removed, nor can we go so far as to say it was impractical or impossible so to do. Neither does the record disclose that the defendant offered to restore the distributing system, consisting of the pipes, registers, tinwork, fittings and so forth. It indicates that the defendant offered to return, and did return, only the furnace proper. Whether or not the retention of a part of the heating system may operate to the advantage of the plaintiff, is not for the rescinding party to determine.
Section 7567, Revised Codes, is clear and leaves no opportunity for any other construction than that the rescinding party must: (1) Restore everything of value which he received under the contract; or (2) must offer to restore the same upon condition that such party shall do likewise, unless (a) the latter is unable to do so, or (b) positively refuses to do so. The record does not disclose the restoration of, or an offer of restoration of, the entire fruits of the contract on the part of the rescinding party; it does not disclose the inability of the plaintiff to restore the consideration for the entire contract, nor a refusal on the part of the plaintiff to accept such restoration, had it been offered. A mere surmise on the part of the rescinding party, such as is referred to in the majority opinion, that the plaintiff would not take back the complete heating plant is not such an offer of restoration as is contemplated by the statute.
Section 10682, Revised Codes, cited by the majority opinion, can have no application here.
I submit that the lower court was correct in its finding that the defendant failed in his attempt to rescind the contract, and therefore, no error appearing, that the judgment should be affirmed. *Page 154