The principle that promises performable during the whole life or at the death of the promisor or another are performable within a year has been extended by some courts to a case where a promise to refrain from competition for a period in terms more than a year from the making of the contract was in question.57 In the leading case58 the court admits the validity of the distinction between performance and an excuse for non-performance, but asserts that since the agreement before it was "only a personal engagement to forbear to do certain acts, not stipulating for anything beyond the promisor's life, nor imposing any duties upon his legal representatives, it would be fully performed if he died within the year." It is obvious, however, that the contract would not be fully performed, under the circumstances supposed; it would merely have become certain that the contract would be performed since the promisor being dead, could no longer break a negative promise; but no one can refrain from competition for two years within a year. Such an agreement therefore should be, and has been held within the statute.59

55 Bristol v. Sutton, 115 Mich. 365, 73 N. W. 434.

56 Promises to support minora have been held within the statute in - Goodrich v. Johnson, 66 Ind. 258; Smite v. Dorr, 5 Wend. 204; Van Schoyck v. Backus, 9 Hun, 68; Jones v. Hay, 52

Barb. 501. See also Deaton v. Tennessee Coal & R. Co. ,12 Heisk. 650.

57 Doyle v. Dixon, 97 Mass. 208, 93 Am. Dec. 80; Brwin v. Hayden (Tex. Civ. App.), 43 S. W. 610.

58 Doyle v. Dixon, 07 Man. 208, 93 Am. Dec. 80.

59 So held in McGirr v. Campbell, 71 N. Y. App. D. 83, 75 N. Y. S. 571; Gottachalk v. Witter, 25 Ohio St. 76. See also Higgins v. Gager, 66 Ark. 604, 47 S. W. 848; Self v. Cordell, 45 Mo. 345. Cf. O'Neal v. Hines, 145 Ind. 32, 43 N. E. 946. Id Mallett v. Lewis, 61 Miss. 105, 107, 108, the court said:

"The defendant bound himself not to re-enter the drug business in the town of Edwards for five years, and during this period to buy all his own drugs from the plaintiff, and to influence his friends to do the same, if goods could be obtained from the plaintiff on as good terms as elsewhere. The breach of contract relied on is that plaintiff was always ready and willing to sell all goods, and actually did sell them when called for, on as good terms as could be obtained elsewhere; but in violation of his contract the defendant and appellee was purchasing from other parties. . . . Plaintiff insists that the case is not within the statute for two reasons; 1st, he says that it was dependent upon the ability and willingness of defendant to furnish him the drugs upon as good terms as could be obtained elsewhere, and therefore it was upon 'a contingency,' to wit: defendant's refusal to comply with its terms in this regard which might occur within less than a year; 2d, that it was dependent upon 'the contingency' of death, which might occur within a year, and as the contract was purely personal and could not descend as an obligation resting upon the promisor's administrator, it was not within the statute. It is undoubtedly true that a contract which is dependent upon a contingency that may occur within less than a year is not in violation of the statute, though it may, if the contingency does not occur, practically run on for a longer period than twelve months; but there is no such contingency here.

"The first contingency set up by the plaintiff, as liable to occur within the year, to wit: that the plaintiff might fail and refuse to sell the goods on as good terms as could be obtained elsewhere, is no contingency at all in the proper sense of that word. On the contrary, it is an attempt to avoid the force of the statute by saying that the adversary might within the year have refused to comply with his portion of it, and therefore his possible refusal makes the contract good. In other words, it is equivalent to saying that the contract is condemned by law; but inasmuch as it is possible that the adversary party may break it or be unable to comply with its terms within less than twelve months, it therefore escapes the condemnation of the statute. If the mere possibility that one of the parties to a contract may within the year refuse or be unable to comply with its terms avoids the statute prohibiting verbal contracts which do not contemplate full performance within the year, it is apparent that the statute is at once at an end. . . . Where the time is indefinite, and supervening death may work completion within the year, the court will not infer an intention to violate the statute, but where two, five, or ten years is expressly stipulated for there is no room for inference, and the statute comes like a tyrant and makes all unenforceable."