The distinction between an excuse for not performing and completion of performance, previously adverted to (supra, Sec. 496) is taken in contracts requiring for their performance a period exceeding a year but which are subject to a right of defeasance, not by operation of law but by the express terms of the contract, within the period of a year; as a contract for several years' service containing a provision permitting termination by either party on a week's or a month's notice. Such contracts are generally held within the statute.60 Where a promise is in the alter-
60In Biest v. Vanrteeg Shoe Co., 97 Mo. App. 137, 70 8. W. 1081, such a contract was held within the statute, and the court said (70 S. W. at page 1086): "A few decisions which exclude an agreement having a fixed time of performance, but liable to be terminated by a contingency, such as the death of a party, from the operation of the statute, as an agreement to support a minor until his majority, or to abstain from doing an act indefinitely, would, of course, exclude this agreement if they were followed. But most cases are the other way, and hold a contract to render service for more than a year to be within the intention and force of the statute, notwithstanding one or both of the parties may have the option of ending it by notice in a year, because full performance cannot be rendered in a year consistently with the understanding of the parties. Dob-son v. Collis, 1 H. A N. 81; Ex parte Acraman (In re Pentreguines Fuel Co.), 4 De Gex F. & 1. 641, 7 Law T. (N. S.) 84; Booth v. Prittie, 6 Ont. App. 680; Packet Co. v. Sickles, 72 U. 8. 580, 18 L. Ed- 650; Warner 0. Railway Co., 164 U. S. 418, 17 S. Ct. 147, 41 L. Ed. 405; Meyer v. Roberts, 46 Ark. 80, 55 Am. Rep. 567; Wilson v. Ray, 13 Ind. 1; Harris v. Porter, 2 Har. 27; Green v. Steel Co., 75 Md. 109, 23 All. 139; Denton v. Tennessee
Coal ft R. Co., 12 Heisk. 650; Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Roberta v. Rockbottom Co., 7 Mete. (Mass.) 46; Roberts 0. Tucker, 3 Exch. 632; Sweet v. Lee, 3 Man. & G. 452; Farrington v. Donohoe, Ir. R.
1 C. L. 675; Murphy v. O'sullivan,
11 Ir. Jur. (N. 8.) 111; Souch v. Straw-bridge, 2 C. B. 808; Eley v. Assurance Co., 1 Ex. Div. 20, 88; Beeston v. Coll-yer, 4 Bing. 309; Ridley v. Ridley, 13 Wkly. Rep. 763; Fenton v. Emblem, 3 Burrow, 1279; Browne, St. Frauds, 279.
"A number of those oases are on the very point involved, and we have found none to the contrary exactly in point, except Smith v. Conlin, 19 Hun, 234, and Blake v. Voight, 134 N. Y. 69, 31 N. E. 256, 30 Am. St. Rep. 622, the first of which is noticed and criticised as clearly erroneous in a note to Peter v. Compton, 1 Smith Lead. Cas. (9th ed.), loc. cit, 586, 599, while the second adopts the first as a precedent." The decision of the House of Lord in Hanau v. Ehrlich,  A. C. 39, affirming s. c. , 2 K. B. 1056, conclusively establishes in England that such a contract is within the statute. See to the same effect besides the authorities above cited - Keller v. Mayer Fertiliser Co., 153 Mo. App. 120, 132 S. W. 314; Reid v. Harding, 2 Hannay (N. Brunswick), 137. On the other native, the contract is not within the statute if either alternative can be performed within a year, though the other cannot be;61 unless at least performance of one alternative is not contemplated except in consequence of a breach of the main promise which forms the other alternative and which the parties contemplate shall be carried out. Thus the following contract though in terms presenting an alternative to the promisor of performance possible within a year was held within the statute: "I hereby agree to employ you at a compensation of fifty dollars per week for three years from the date hereof or for so much of such three years as your results show the ability that you now claim to be able to give me." 62 The court said in regard to this contract: "It is clear that the parties intended that this agreement should run for three years and that it could be terminated before the end of that time only upon breach by one party or the other." 63
Sec. 499. The form rather than the substance of an agreement may bring it within the statute. The distinction doubtless is a fine one between the performance of a promise on the one hand, and an excuse for nonperformance on the other; especially when under the heading of excuse for non-performance must be included an excuse provided by the contract itself by way of defeasance or condition subsequent. The distinction involves the form of the contract quite as much as its substance, as may be shown by the following illustrative cases: -
1. A promise to serve two years;
2. A promise to serve as long as the employee lives, not exceeding two years; hand, the case of Johnston v. Bower-sock, 62 Kan. 148, 61 Pac. 740, must be added to those cited by the Missouri court as opposed to the text. There a contract for ninety-nine years, terminable on three months' notice if certain business proved unprofitable, was held not within the statute. See also Girton v. Daniels, 35 Nev. 438, 129 Pac. 555.
61 MoConahey v. Griffey, 82 Ia. 664, 48 N. W. 983; Standard Oil Co. v. Denton, 24 Ky. L. Rep. 906, 70 S. W. 282; Roberts v. Rockbottom Co., 7 Mete. (Mass.) 46.
62Wagniere v. Dunnell, 29 R. I. 680, 73 Atl. 309.
63 See further in regard to contracts only in form alternative, infra, Sec.Sec.781 et seq.
3. A promise to serve two years if the promisor lives so long;
4. A promise to serve two years, but if the promisor dies the contract shall be terminated.
It is obvious that all these promises have substantially the same meaning and legal effect; yet certainly the first promise, and presumably the fourth, are within the statute, while certainly the second and presumably the third are not.64