Sutchliffe v. Atlantic Mills, 13 R. I. 480, 43 Am. Rep. 39. See also Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S. W. 130; Mendelsohn v Banov, 57 S. Car. 147, 35 S. E. 499; Lee v. Hill, 87 Va. 497, 12 S. E. 1052, 24 Am. St. Rep. 666; Drsheim v. Evison, 112 Wis. 27, 87 N. W. 796.

92 Baltimore, etc., Co. v. Callahan, 82 Md. 106, 33 Atl. 460; Smith Co. v. Jones, 75 Miss. 325, 22 So. 802.

93 See supra Sec. 90.

94Beeston v. Collyer, 4 Bing. 309; Collis p. Bottbamley, 7 Weekly Rep. 87; Tatterson v. Suffolk Mfg. Co., 106 Mass. 56; Sines v. Superintendents of the Poor, 58 Mich. 503, 26 N. W. 485; Reyniok v. Amngton, 179 Mich. 630, 146 N. W. 252.

95In contracts made by promoters before the organisation of corporations, the accepting or rendering of performance by the corporation when formed creates a contract on its part if the character of the contract is such as to need no formal action. See supra, Sec. 306. And accordingly in Mo-Arthur v. Times Printing Co., 48 Minn. 319,61N. W. 216,31 Am. St. Rep. 653, it was held that where a contract was made by a promoter to employ the plaintiff for a year beginning in the future, and the corporation on being formed began to carry out the contract, a new contract with the corporation was thereby formed which was not within the Statute of Frauds, since performance could be completed within a year from the time when the begin-ing 'of"performance indicated assent by the corporation, and a continuance of the plaintiff's assent.

If beginning performanoe in such a case indicates assent to the terms of a bargain previously made by a promoter, it is hard to see why acceptance of a beginning of performance dees not in any ease indicate a new assent to the bargain previously made. So in Lavery v. Turley, 6 H. & N. 239, the court held an executed oral agreement of accord and satisfaction was a good defence, though the accord while executory was within the statute. The dedson seems to involve giving effect to the implied renewed assent to the tems of the executory accord, indicated by accepting performance of it. Consider also cases holding an invalid bilateral agreement may ripen into a valid unilateral agreement on performance by one party. See supra, Sec. 131, ed fin.

96 By Brett, L. J., in Britain v. Ross ter, 11 Q. B. D, 123,127.

The proposition thus stated, however, in regard to implied contracts relates properly to quasi-contractual obligations not to contracts implied in fact. It is undoubtedly true that a quasi-contractual obligation will not be, and should not be imposed on parties when they have made a bargain for themselves which still remains subsisting and enforceable. Whether such an obligation may not be imposed if the bargain actually made is unenforceable, need not here be argued,97 but wherever the parties manifest an intention in fact, there is no reason why a contract should not then be formed. If this argument were accepted, it would follow that the statute is satisfied by the giving of performance by one and acceptance of it by the other. No implication of a new contract would be warranted, merely by performance on one side without such acceptance of or assent to the performance as would indicate mutual assent to an agreement for the remainder of performance within one year of the time when the period for full performance would expire. This result certainly has not generally been reached by the cases; on the contrary it has been held that an agreement for a year's services to begin in the future is not taken out of the statute by beginning performance.98 It has indeed been held that a subsequent oral restatement of the previous oral bargain at a time when performance can be completed within a year, is sufficient to satisfy the statute.99

97 As to this see infra, Sec. 534.

98Comes v. Lamson, 16 Conn. 246; Kleeman v. Collins, 9 Bush, 460, 464; Oddy v. James, 48 N. Y. 686; Turnow v. Hochstadter, 7 Hun, 80; Hillhouse c. Jennings, 90 S. C. 373, 392, 38 S. E. 696,699.

Similarly it was held in - Draheim v. Evison, 112 Wis. 27, 87 N. W. 795; Chase v. Hinkley, 126 Wis. 76, 105 N. W. 230, 2 L. R. A. {N. S.) 738, that an employee who had ceased performance under such a contract after having begun performance, could recover on a quantum meruit and the employer could not set up against him the special contract. In none of the cases in this note, however, did the court suggest the line of argument in the text; and it should be observed that a party who would seek to enforce such an implied agreement as suggested in the text must base his claim on a .new contract implied in fact, not on the original oral agreement. See Hahnel d. Highland Park College, 171 Ia. 492, 162 N. W. 571. rial when performance on one side is executed, whether within or beyond the period of a year. Indeed, it has been stated by good English authority that either if the contract was perform ■ able on one side within a year or, though not bo perform-able, was in fact fully executed on one side, the contract is not within the statute.* Subsequently, however, the English court has held a contract within the statute where performance on one side could not be completed within the year, and performance on the other side (though it might possibly have been performed within the year), was not expected to be so performed and was not so performed, in spite of the fact that the latter promise was fully executed after the expiration of a year.7 In the United States the distinct numerical weight of authority supports the proposition that if performance on one side can be fully executed within a year, and is so executed, the contract is not within the statute, and in many cases the mere fact that it is executed on one side withdraws it from the statute.8 It is not usually clearly stated upon what ground the

99 Catlett v. Burke, 96 S. Car. 363, 80 S. E. 610; Huebner v. Euebner, 163 Wis. 166, 157 N. W. 766. See also Sun Antonio Light Pub. Co. v. Moore (Tex. Civ. App.), 101 S. W. 867.

But it is generally held requisite that a new oral contract should be made in express terms; a restatement of the old contract being regarded as merely an admission that a contract was formerly made and not as the making of a new contract.1 It is to be observed, however, that a restatement of the terms of the agreement coupled with the beginning of performance involves more than an admission of a former agreement, there is a present assent to carry it out, and in this case there is no need to refer to an oral agreement made prior to the year allowed by the statute in order to determine the nature of the new promise implied from the acceptance and receipt of part performance for the restatement clearly indicates what implication of fact a is from the beginning of performance. For similar reasons, a contract originally within the statute is orally modified a time when performance can be completed within a year, the agreement as modified would seem to be enforceable, a new substituted contract being formed which is not within the statute.