The remaining class of agreements covered by the fourth section of the statute of frauds are those which are not to be performed within a year from the making thereof. For an agreement to come under this provision it must be absolutely impossible for the agreement to be performed within the year. If there is a chance for the performance within this time, no matter how small or how remote, the statute does not apply.70 In Dougherty vs. Rosenberg71 an oral agreement to pay an assessment when the promise recovered judgment against other parties, if the promise would altogether forbear to sue the promisor, was held to be . valid because the judgment might be recovered within a year. In Scribner vs. Flagg Mfg. Co.,72 the Court held: "The remaining question related to the statute of frauds, (Pub. St., C. 78, Sec. 1, CI. 5.) The defendant contends that the contract was not to be performed within one year, and, therefore, not being in writing and signed by the party to be charged is within the statute. There is nothing in the terms of the agreement to show that it was not to be performed within one year. The plaintiff was to receive 5 per cent, on all sales made to Eichler. The contract between Eichler and the defendant, so far as appears, was purely a personal one, and would have terminated by the death of Eichler. This might have happened within a year, and consequently the contract was not within the statutes. Peters vs. Inhabitants of West-boro, 19 Pick, 364; Lyon vs. King, 11 Metc, 411; Doyle vs. Dixon, 97 Mass., 208; Smerby vs. Buntin, 118 Mass., 279, 286; Bartlett vs. River Corp., 151 Mass., 433, 24 N. E. 780; Carnig vs. Carr, 167 Mass., 544, 46 N. E. 117, 35 L. R. A. 512; McGregor vs. McGregor, 21 Q. B., Div. 424."

65 Pierce vs. Woodward, 6 Pick, 206. 66 Pitman vs. Hodge, 67 N. H., 101. 67 Hannan vs. Prentis, 124 Mich., 417, 83, N. W., 102.

68 Ferguson, Ramsey, 41 Ind., 511.

69 Wallace vs. Rappleye, 103 I11., 229.

In counting the time the year runs from the day the agreement is made, and not from the day when performance is to begin.73 A contract, however, requiring one year for performance will not be regarded as within the statute if there is no evidence by its terms that the year was to commence in the future.74

70 Standard Oil Co. vs. Denton, 24 Ky. L. Rep., 1581; 70 S. W., 282; Neal vs. Parker, 98 Md., 254.

71 62 Cal., 32.

72 175 Mass., 536, 56 N. E., 603.

73 Sharp vs. Rhiel, 55 Mo., 97.

This provision of the statute has no relation to the subject matter of the contract. It is generally held not to apply in cases of contracts affecting real estate,75 but there are decisions to the contrary.76 In some states oral promises to marry which are not to be fulfilled within a year are held to be covered by the statute,77 while in other states they are not.78

Oral agreements made to depend upon the happening of a contingency are not within the statute if the contingency may happen within the year; 79 nor does the statute apply in the case of a promise to continue to do something indefinitely, if either party has the right to terminate such contract before the expiration of a year.80

An oral agreement to refrain from doing something, is likewise not within the scope of this provision of the statute. Such a promise can at most only continue during the life time of the promisor, and this may come to an end before the termination of the year. An oral agreement, however, to refrain from doing a certain thing for a year from a future date, has been held invalid.81