If, upon a reasonable construction of the contract, it appears to have been understood by the parties that it was not to be performed within the year, it is within the statute.79 In order that an agreement may fall within this clause of the statute, however, the parties must contemplate that it shall not be performed within a year. The mere fact that it may not be, or is not, performed within the year, does not bring it within the statute. It must appear, it has been said, that "it is to be performed after the year."80 Further than this, the agreement must be impossible of completion within a year. If, by any possibility, it is capable of being completed within a year, it is not within the statute, though the parties may intend, and though it is probable, that it will extend over a longer period, and though it does in fact so extend.
75 See Mumford v. Whitney, 15 Wend. (N. T.) 3S0, 30 Am. Dec. 60. In the case cited the authorities are collected and discussed at length. See, also, Whitmarsh v. Walker, 1 Mete. (Mass.) 313; Johnson v. Wilkinson, 139 Mass. 3, 29 N. E. 62, 52 Am. Rep. 698; Tayler v. Waters, 7 Taunt. 374; Hayes v. Fine, 91 Cal. 391, 27 Pac. 772; Clanton v. Scruggs, 95 Ala. 279, 10 South. 757. Easement in portion of the water from a ditch. Dorris v. Sullivan, 90 Cal. 279, 27 Pac. 216. Agreement between railroads for joint use of the right of way of one not within the statute. Alabama G. S. R. Co. v. Railroad Co., 84 Ala. 570, 3 South. 286, 5 Am. St. Rep. 401. Nor is an agreement between telegraph companies for the use by one of the other's poles. Farnsworth v. Telegraph Co., 53 Hun, 636, 6 N. Y. Supp. 735. A right to drain water over another's land is said to be an interest in land. Deyo v. Ferris, 22 111. App. 154; Id., 24 111. App. 416. See "Frauds, Statute of" Dec. Dig. (Key-No.) §§ 60, 61; Cent. Dig. §§ 83-96.
76 Bonclli v. Blakemore, 66 Miss. 136, 5 South. 228, 14 Am. St. Rep. 550. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 60, 61; Cent. Dig. §§ 83-06.
77 Rev. St. 111. c. 59, § 2,
78 Virginia and Kentucky.
79 White v. Fitts, 102 Me. 240, 66 Atl. 533, 15 L. R. A. (N. S.) 313, 120 Am. St. Rep. 483. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 1,6; Cent. Dig. ft 72.
The oral contracts that have been held enforceable under this rule may be classified as follows:
(a) Agreements for the performance of an act on the happening of a contingency which may possibly happen within a year - as in the case of agreements to do something on the marriage or death of a person, without further specification as to time; or upon the return of a ship, which may return within a year, though it does not in fact return until a longer time has elapsed; or upon the happening of any other event which may happen at any time.81
(b) Agreements for the continuous performance of acts until the happening of a contingency which may possibly happen within a year, - as in the case of agreements to render services, or to support a person, or to pay money from time to time, during a person's life, or until a person's marriage, or until the happening of any other event which may possibly happen within a year." In this class may be placed contracts that may be terminated at any time on notice, and contracts to perform acts so long as the other party may need such performance.83
80 Peter v. Compton, 1 Smith, Lead. Cas. 335; DOYLE v. DIXON, 97 Mass. 208, 93 Am. Dec. 80, Throckmorton Cas. Contracts, 72; Warner v. Railway Co., 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495; Bullock v. Turnpike Co., 85 Ky. 184, 3 S. W. 129; Worley v. Sipe, 111 Ind. 238, 12 N. E. 385; Jones v. Pouch, 41 Ohio St. 146; Raynor v. Drew, 72 Cal. 307, 13 Pac. 866; Sarles v. Sharlow, 5 Dak. 100, 37 N. W. 748; Warren Chemical & Mfg. Co. v. Hol-brook, 118 N. Y. 586, 23 N. E. 908, 10 Am. St. Rep. 788; Durham v. Hiatt, 127 Ind. 514, 26 N. E. 401; Sweet v. Lumber Co., 56 Ark. 629, 20 S. W. 514; Niagara Fire Ins. Co. v. Greene, 77 Ind. 590; Cole v. Singerly, 60 Md. 348; MacElree v. Wolfersberger, 59 Kan. 105, 52 Pac. 69; Richmond Union Pass. R. v. Railroad Co., 96 Va. 670, 32 S. E. 787. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 1,9, 50, 52; Cent. Dig. §§ 74-79.
81 Kent v. Kent, 62 N. Y. 560, 20 Am. Rep. 502; Jilson v. Gilbert, 26 Wis. 637, 7 Am. Rep. 100; Updike v. Ten Broeck, 32 N. J. Law, 105; Anonymous, 1 Salk. 280; Blake v. Cole, 22 Pick. (Mass.) 97; McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746; Cole v. Singerly, 60 Md. 348; Thomas v. Armstrong, 86 Va. 323, 10 S. E. 6, 5 L. R. A. 520; Bartlett v. Mystic River Corp., 151 Mass. 433, 24 N. E. 780; Clark v. Pendleton, 20 Conn. 495. A promise by a man to marry when he recovers his health, McConahey v. Griffey, 82 Iowa, 564, 48 N. W. 983; or when he returns from a voyage from which he may or may not return within a year, Clark v. Pendleton, 20 Conn. 495 - is not within the statute. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 50; Cent. Dig. §§ 75-77.
(c) Agreements which, from their nature, and without mentioning any contingency, will be completely performed according to their terms and intention if a certain contingency shall happen within the year 84 - as in the case of agreements to forbear from personally doing certain acts for an indefinite time, or for a number of years, and which would be fully performed if the promisor should die within the year;85 or of agreements to educate or support a child until a certain age, at which he will not arrive for several years, or for an indefinite time, and which would be completely performed if the child should die within the year.86 The agreement, to come within this class, must be such that it will be fully "performed" on the happening of the contingency, and not merely terminated. If it cannot be fully performed within the year, the fact that it may be terminated, or that further performance may be excused or rendered impossible, is not sufficient to take it out of the statute.87 And this is true even though the contract contains a provision by which either party may terminate it within a year.88 (d) Agreements which fix no definite time for their performance, but which, in view of the subject-matter and of the understanding of the parties, may be fully performed within a year;89 as an agreement for the making and gathering of a crop which may be made within a year, although a longer time is usually required.90