cerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars, and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct 'any defect or insufficiency . . . in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce. But independently of the statute we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? (Citing cases.) Of course we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such." (Italics ours.) In the Pedersen case the rule adopted by the supreme court of the United States applied with equal force to a bridge and an engine. In the Ruth case we made the application of the principle there stated to an engine. I think that this case was correctly decided and that the Winters case was not a departure from the rule laid down by us or the rule laid down by the supreme court of the United States in the Pedersen case, but depends upon its own peculiar facts and the narrowness of the stipulated facts. The whole point of the Winters case is that the supreme court of the United States felt itself unable to say, under the admitted facts, that the engine there involved was permanently used in,

or, if I may use the expression, dedicated to interstate commerce. Here we have an engine which, by reason of its peculiar construction, is and at all times has been as much dedicated to interstate commerce as is a bridge upon the main track of a railroad. In the Pedersen case it was assumed that engines and cars were obviously instrumentalities used in interstate commerce, and from that predicate it was argued that a bridge was equally such an instrumentality. The main opinion assumes that a bridge is such an instrumentality, but denies that an engine undergoing repairs is such an instrumentality, notwithstanding the fact that it was at all times used in interstate commerce.

I dissent for the further reason that we have expressly decided the very question involved in this case; that the principle involved is well settled and of universal application; that the only difficulty is that of applying it to the specific facts in each case; that we have already made such an application; that the supreme court of the United States has never undertaken to change or modify the general rule; that the Winters case is different in its facts, and that, so far as we can determine from the published opinions of the supreme court of the United States, they have distinctly approved our decision in the Ruth case. I think we ought not to assume that the Ruth case is reversed by reason of the holdings in the later cases of the supreme court of the United States, which merely apply the wellsettled rule to the peculiar facts of each case, which are in every instance different from those in this case. Rehearing denied.

All the Justices concurred, except Shaw, J., and Sloane, J., who were absent.

[L. A. No. 4969. In Bank.—October 5, 1920.]

PACIFIC WHARF AND STORAGE CO. (a Corporation), Respondent, v. STANDARD AMERICAN DREDGING CO. (a Corporation), et al., Appellants.

[1] CONTRACT-ILLEGALITY-REFUSAL OF RELIEF.-The failure of the party against whom relief is sought upon an illegal contract to make objection upon the ground of illegality will not justify a court in enforcing the same.

[2] ID. ENTIRE AND SEVERABLE CONTRACTS · - CONSTRUCTION

- INTENTION OF PARTIES.-Whether a contract is entire or separable depends upon its language and subject matter, and this question is one of construction to be determined by the court according to the intention of the parties.

[3] ID. RESTRAINT OF TRADE-PUBLIC POLICY.-The rule making void contracts in restraint of trade is not based upon any consideration for the party against whom the relief is sought, but upon considerations of public policy.

[4] ID. CONTRACT CAPABLE OF TWO CONSTRUCTIONS-RULE.-Where a contract is capable of two constructions, the one making it valid and the other void, the first ought to be accepted.

[5] ID.-CONTRACT FOR SALE OF DREDGE-PAYMENT BY NOTES-AGREEMENT NOT TO ENGAGE IN BUSINESS-SEVERABLE PROVISIONS.-A provision in a contract for the sale of a dredge for payment of a part of the purchase price in promissory notes is separable from a further provision for the employment of the buyer by the seller to do certain dredging work at a certain price followed by the agreement of the seller not to build any dredge or dredging plants in certain harbors, or to engage in the dredging business at either of such places, where the price of the dredge is definite and in no manner interdependent or connected with the provision relating to the doing of the work.

[6] ID.-APPORTIONMENT OF CONSIDERATION-SEVERABLE COVENANTS.Where several things are to be done under a contract, if the money consideration to be paid is apportioned to each of the items to be performed, the covenants are ordinarily regarded as severable and independent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge. Affirmed.

The facts are stated in the opinion of the court.

Overton, Lyman & Plumb for Appellants.

Goodwin & Morgrage for Respondent.

The following opinion was prepared by Mr. Justice Kerrigan of the district court of appeal for the first appellate district while acting as justice pro tempore in this court in the place of Mr. Justice Melvin. It is adopted as the opinion of this court.

THE COURT.-This is an action to recover on seven promissory notes for two thousand dollars each, executed by defendant corporation and indorsed by the defendant R. A. Perry. The notes were made in favor of and delivered to plaintiff corporation in conformity with the terms of a certain written contract entered into by and between the parties hereto on the eighteenth day of June, 1912. The contract provided for the sale by plaintiff to defendant of a certain dredge for the sum of thirty-six thousand dollars payable as follows: The sum of two thousand dollars to be credited to defendant upon the execution of the agreement, which amount was due defendant from plaintiff upon the settlement of certain accounts had between them; the further sum of six thousand dollars for the performance by defendant of certain work, and the balance of the purchase price amounting to the sum of twenty-eight thousand dollars, by the execution and delivery by defendant to plaintiff of two promissory notes in the principal sum of fourteen thousand dollars each, to mature in six and twelve months respectively from the dates thereof. In lieu of the two notes thus provided for, one note for fourteen thousand dollars was given and seven notes for two thousand dollars each. The fourteen thousand dollar note was paid. The seven notes for two thousand dollars each were indorsed by defendant Perry. These seven notes were not paid and plaintiff's cause of action is founded thereon.

The complaint, which was filed December 13, 1913, contains seven separate causes of action. By answer and counterclaim defendants admitted the execution and delivery to plaintiff of the several notes sued upon and the ownership thereof in plaintiff, but denied that there was due and

unpaid thereon more than $1,527.29 of principal of each of said notes.

A trial was had upon the merits and at the conclusion thereof judgment was rendered in favor of plaintiff for the full amount of the notes, together with interest thereon and attorneys' fees.

Thereafter, defendant moved for a new trial, and in support of the motion presented only one ground, viz., that the decision was against law in that the evidence showed that an inseparable part of the consideration of the notes in suit was illegal, void, in restraint of trade, and made for the purpose of creating a monopoly of the dredging business in the harbors of San Diego and Los Angeles.

The trial court denied the motion, and the only point raised by appellant on this appeal is the claim that the evidence shows that the consideration for the notes was illegal, and that therefore no recovery should be had thereon. Respondent, in support of the judgment, presents several answers to the objection made by appellants. In substance, the contract is as follows: After the introductory paragraph the first covenant provides for the sale of the dredge for the specified amount named, and the payments to be made in the manner heretofore indicated; the next covenant provides for the employment of defendant by plaintiff to do certain dredging in Los Angeles harbor at a certain price per cubic yard, and then follows the obnoxious paragraph which reads: "The parties of the first part hereby agree not to build any dredge or dredging plants in Los Angeles or San Diego harbors, or to engage in the dredging business at either of said places."

It is the latter paragraph that appellants claim to be in restraint of trade and therefore void, and we are cited to sections 1673 and 1674 of our Civil Code as supporting this contention.

In substance, these sections provide that every contract by which anyone is restrained from exercising a lawful business. is to that extent void, except where he has sold the goodwill of a business, in which case he may agree not to engage in a similar business within specified limits. The language of these code sections is clear and unambiguous, but respondent claims they do not control this case for several reasons.