Another rule, which is established in England and in most of our states, is that an agreement does not fall within the statute if that which one of the parties is to do is all to be performed within a year; in other words, the agreement must contemplate nonperformance by both parties within the year.92 A part performance by one of the parties, however, will not take the agreement out of the statute.93

Some of the states, however, have refused to recognize this rule, and hold that, even though all that is to be done by one of the parties is to be fully done within a year, the agreement is nevertheless within the statute, if the other party's promise is not to be performed within the year; 94 and in these states no recovery can be had on the contract by the party who has performed his part, though he may sue on the promise implied on the part of the other party from his acceptance of the benefits of such performance.98

89 Thomas v. Croom, 102 Ark. 108, 143 S. W. 88. See "Frauds, Statute of," Dec. Dig. (Key-No.) § J,9; Cent. Dig. § 74.

90 Valley Planting Co. v. Wise, 93 Ark. 1, 123 S. W. 70S, 26 L. R. A. (N. S.) 403. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 49; Cent. Dig. § 74.

91 Haussman v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 Am. St. Rep. 74; Seddon v. Rosenbaum, 85 Va. 928, 9 S. E. 326, 3 L. R. A. 337; Walker v. Johnson, 96 U. S. 424, 24 L. Ed. 834; Connolly v. Giddings, 24 Neb. 131, 37 N. W. 939. A contract intended to be performed within a year is not within the statute, though before the year expires it is extended six months. Ward v. Matthews, 73 Cal. 13, 14 Pac. 604; Donovan v. Richmond, 61 Mich. 467, 28 N. W. 516. A written lease for more than a year, but with less than a year to run, may be modified by parol. Doherty v. Doe, 18 Colo. 456, 33 Pac. 165. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 45; Cent. Dig. §§ 67-7/.

92 Donellan v. Read, 3 Barn. & Adol. 899; Horner v. Frazier, 65 Md. 1, 4 Atl. 133; Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Winters v. Cherry, 78 Mo. 344; Smalley v. Greene, 52 Iowa, 241, 3 N. W. 78, 35 Am. Rep. 267; Durfee v. O'Brien, 16 R. I. 213, 14 Atl. 857; Dant v. Head, 90 Ky. 255, 13 S. W. 1073, 29 Am. St. Rep. 369; Berry v. Doremus, 30 N. J. Law, 399; Piper v. Kosher, 121 Ind. 407, 23 N. E. 269; Grace v. Lynch, SO Wis. 106, -19 N. W. 751; Curtis v. Sage, 35 111. 22; Langan v. Iverson, 78 Minn. 299, 80 N. W. 1051; Washburn v. Dosch, 68 Wis. 436, 32 X. W. 551, 60 Am. Rep. 873. See "Fraud*, Statute of," Dec. Dig. (Key-No.) §§ 54, 136; Cent. Dig. §§ 81, 300.

93 See Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; Shumate v. Farlow, 125 Ind. 359, 25 N. E. 432; Baker v. Codding, 18 N. Y. Supp. 159; Hartwell v. Young, 07 Hun, 472, 22: X. Y. Supp. 486; Chase v. Hinkley, 126 Wis. 75, 105 N. \V. 230, 2 L. R. A. (X. S.) 738, 110 Am. St. Rep. 896, 5 Ann. Cas. 328. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 136; Cent. Dig. § 300.

It is held in Illinois that an agreement which is to be fully performed within the year, except for the mere payment of money, is not within the statute; the party to whom the money is payable having performed on his part.96