68In White v. Fitts, 102 Me. 240, 66 Atl. 533, 15 L. R. A. (N. S.) 313, the plaintiff was to cut down and saw into the desired lengths all of the standing timber on the 350 acres of defendant's timber land, as fast as the defendant needed it for use in his mill. There were no specifications and no further stipulations in regard to the time within which the work was to be completed and the contract performed. The agreement was held within the statute.
In Farwell v. Tillson, 76 Me. 227, the defendant had a government contract to furnish stone for the custom house at St. Louis, and made a verbal contract with plaintiff For the transportation of the stone from Maine to Baltimore. The government required defendant to furnish the stone " at such times as may be required" by the government. No time was specified. The court held that the circumstances showed that the parties did not intend or understand that the contract was to be performed within one year, and hence the contract was within the statute of frauds. See also East Tennessee Tel. Co. v. Paris Electric Co., 156 Ky. 762, 162 S. W. 530, Ann. Cas. 1915 C. 643; Akdns v. Bucks, 109 Mo. App. 96, 83 S. W. 75; Jones v. McMicbad, 12 Rich. L. 176. Cf. Randall v. Turner, 17 Ohio St. 262. Them the plaintiff agreed to receive certain stock, on condition that he should retain the same until a reasonable time should expire for the completion of a railroad; and, if the road should be so completed, he agreed to receive the stock in full satisfaction of four hundred dollars owing to him; and, in case of the failure to complete the road in a reasonstalments of not less than $4 nor more than $8, "unless the plaintiff should find it convenient to pay more" has been held bad.69 So an agreement to indorse renewal notes to a bank until the promisee "was put in position to pay the same by realizing on his other collaterals," the circumstances showing that practically this could not be done within a year;70 an agreement to support a child, then five years old, until she is able to support herself; 71 a contract made on August 20th for a year's employment to begin as soon as the employee could; when in fact he began to work on August 27th," an agreement by a mortgagee who has entered to foreclose that if he sells the property (which under prevailing statutes he could not able time, he was to return the stock to the defendant whereupon the four hundred dollars was to become due, and to be then paid by him to the plaintiff. The court said: "The most that can be claimed, is that it was not likely to be performed within a year; but it was clearly susceptible of performance within that time. The road might have been abandoned within a year, and thus a reasonable time to wait for its completion would have expired. There was, surely, nothing in the contract that fixed the time of performance beyond a year." 80 in McClanahan v. Otto-Marmet, etc., Co., 74 W. Va. 543,82 8. E. 752, a contract to cut the timber on certain tracts of land, and deliver it as ties and posts, was held not within the statute, though the employee expected when he undertook the work that it would require six years; the court saying of the contract: "It can only be said that it was not likely to be performed, nor expected by plaintiff to be performed within a year. This was held in Kimmins v. Oldham, 27 W. Va. 258, not to bring an agreement within the statute." A similar case is Reek-ley v. Zenn, 74 W. Va. 43, 81 S. E. 565. [Cf. Rua v. Bowyer Smokeless Coal Co. (W. Va.), 99 S. E. 213.] If the construction or work in question may reasonably be completed within a year, unquestionably the statute is inapplicable. Sarles v. Sharlow, 5 Dak. 100, 37 N. W. 748; First Presbyterian Church v. Swanson, 100 111. App. 39; Ford Lumber Co. v. Cobb, 138 Ky. 174, 127 S. W. 763; Drew 0. Wiswall 183 Mass. 554, 67 N. E. 666; Barton v. Gray, 48 Mich. 164, 12 N. W. 30, 57 Mich. 662, 24 N. W. 638; Thomas p. South Haven, etc., R. Co., 138 Mich. 50, 100 N. W. 1009; Girton v. Daniels, 35 Nev. 438, 129 Pac. 555; Gault v. Brown, 48 N. H. 183, 2 Am. Rep. 210; Plimpton v. Curtiss, 15 Wend. 336; Van Woert v. Albany, etc., It. Co., 67 N. Y. 538; Travis ». Myers, 67 N. Y. 542; Jones v. Pouch, 41 Ohio St. 146; Long Mfg. Co. d. Gray, 13 Tex. Civ. App. 172, 35 S. W. 32; Rogers v. Brightman, 10 Wis. 55.
69 Saunders v. Kastenbine, 6 B. Mon. 17. See also Kellogg v. Clark, 23 Hun, 393.
70 Cantwell v. Johnson; 236 Mo. 575, 139 S. W. 365.
71 Farrington v. Donohoe, Ir. Rep. 1C. L. 675.
72Sutcliff v. Atlantic Mills, 13 R. I. 480, 43 Am. Rep. 39. This case is defensible only on the assumption that the parties understood that A could not begin his year's service at once.
Whether a promise to perform a given act "within" a fixed period greater than a year should be within the statute would depend, if the cases in this section are sound, on whether the performance in question is capable of performance within a year, if the anticipated methods are followed. A contract to dig a tunnel within fifty years would then be within the statute if the contemplated method of performance would require necessarily more than a year. And this would be true even though by an enormous force of workmen, and perhaps by new inventions, performance might conceivably be made within a year.77
On the other hand, if the contemplated mode of performance might possibly be carried out in less than a year, the contract would not be within the statute;78 and by some courts
73Fnuy v. Sterling, 99 Moss. 461. But see McGinnis v. Cook, 57 Vt. 36,52 Am. Rep. 116.
74 See also for the point that the contemplation of the parties, not merely the possibilities legally open under the contract, is to be considered, W&g-niere v. Dunnell, 29 R. I. 580, 73 Atl. 30ft.
75Swift v. Swift, 46 Cat. 266; Eikd-man v. Perdew, 140 Cal. 687, 74 Pac. 291.
76 Suinmerall v. Thorns, 3 Fla. 298; Butler v. Shehan, 61 111. App. 661; Groves v. Cook, 88 Ind. 169, 46 Am. Rep. 462; Williams v. Calloway, 12 Ky. L. Rep. 716; Lockwood v. Barnes, 3 Hill, 128,38 Am. Dec. 620; Van Dyke v. Clark, 19 N. Y. S. 650.
77 A promise by a seller of an interest in a patent to repay the buyer the price paid by him if he should not within three years realise profits from the patent equalling the price, was held within the statute in Laphtun v. Whipple, 8 Mete. 59, 41 Am. Dec. 487. See also Moore v. Voeburgh, 66 N. Y. App. Div. 223, 72 N. Y. S. 696.
78 Thus a promise to marry within a period exceeding a year would not be within the statute, although the parties may not have expected the marriage to take place in lees than a year. Paris v. Strong, 51 Ind. 339; Lawrence v. Cooke, 66 Me. 187, 96 Am. Dec. 443; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. So an oral agreement made in October, 1886, to pay the seller of grain the market price thereof on any day prior to May, 1888, which the seller might choose, was upheld in Powder River Co. v. Lamb, 38 Neb. 330, 56 N. W. 1019. An oral agreement that a mortgagor might redeem oral promisee to retain property until the profits should repay certain sums79 or until a net profit of 150,000 had been realized, have been upheld without inquiry as to the possibility of achieving these results under the actually contemplated method of performance.80