It has been settled in England that though part performance of an oral agreement not performable within a year does not take the contract out of the statute, yet full performance within a year on one side, at least if such full performance was intended to be made within the year, takes the whole contract out of the statute.2 The extent of the exception is, however,

1 In Odell v. Webendorfer, SO N. Y. App. Div. 579, 581,64 N. Y. S. 451, the court said: "No contract was made that day, but only the terms of the prior contract were restated by either him or the defendant, for the sake of certainty as to the mutual obligations. What was actually said on the first of April does not appear in the case at all. This is not sufficient to take the case out of the operation of the statute. A new contract then made is requisite; that is, the former contract should then be expressly renewed or the employer cannot be held bound. Oddy v. James, 48 N. Y. 686; Berrien p. Southack, 26 N. Y. St. Rep. 032, 7 N. Y. S. 324; Billingtou v. Cahill, 51 Hun, 132, 4 N. Y. 3. 660." Bee also Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 8. W. 130; Blanton v. Knox, 3 Mo. *342; Haslam v. Barge, 69 Neb. 644, 96 N. W. 245; Booker v. Haffner, 95 N. Y. App. D. 84, 88 N. Y. S. 499; Gottlieb v. Gins, 169 N. Y. S. 599; Guitar v. McGee (Tex. Civ. App.}, 139 S. W. 622.

2 This doctrine started from a dictum in Boydell v. Drummond, 11 East, * 142. It was finally settled and usnot at all clear. It has sometimes been said that the words of the statute include only agreements not to be performed on either side within a year.3 If this is true, then, even though the contract is wholly executory on both sides an action would he for breach of the promise, which was performable within the year.4 This subjects the maker of that promise, however, to no hardship for if he performs whether voluntarily or under legal compulsion, he would be allowed to enforce the counter promise when its performance was due; and if he is merely held liable in damages for failing to perform, the value of the future counter performance will be taken into accgunt. It may be doubted, however, whether the statute should not generally be held applicable to such contracts. But the time when performance on one side or the other may . due has not been the only definition suggested for the limits of the statute considered in this section. Eminent judges has estated that the statute is inapplicable if the promise on one side has been fully executed.5 If this is the correct view, it is inornatetablished by Donellan v. Read, 3 B. & Add. 899; Cherry p. Homing, 4 Exch. 631, and has been followed or recognised in Smith v. Neale, 2 C. B. (N. S.) 67; Miles v. New Zealand Alfred Est. Co., 32 Ch. Div. 266, 296; Reeve v. Jennings, [1910] 2 K. B. 522. 3Cherry v. Heming, 4 Exch. 631, 635, per Parke, B.

So Leake, Contracts (4th ed.), page 170, says that - "contracts which may be performed within the year on one aide only, though they cannot be performed within the year on the other side, are not within the statute."

4This conclusion was actually reached in Sheeny v. Adarene, 41 Vt. 541, 98 Am. Dec. 623. In that case the defendant promised to provide the plaintiff with a cow, beginning at an early specified day and continuing for a year thereafter. The plaintiff agreed to buy the cow at the end of the year or pay for her use. The defendant failed to provide the cow and the plaintiff was allowed to recover damages. The court said that the defendant's performance was to be rendered within the year, and that the failure to furnish the cow left nothing to be done by either party except the payment of damages which were due immediately. The reasoning in the case is specious and its conclusion of doubtful correctness. The case of Sauser v. Kearney, 147 Ia. 33S, 126 N. W. 322, is, however, to substantially the same effect. There the plaintiff orally contracted to sell certain lumber and not to compete with the defendant for two yearn; the defendant agreeing to pay the cost of the lumber and 600 additional. The defendant paid the coat of the lumber but not the agreed sum of 1500, and the plaintiff was allowed to recover it. The court relies on Smalley v. Greene, 52 Ia. 241, 3 N.W. 78, 35 Am. Rep. 267, as identical in principle, but in that case performance on one side not only might be made within a year but actually had been, and the court states this as its ground of decision. 5Knowlman v. Bluett, L. R.

Exch. 1, per Blackburn, J., referring to South v. Strawbriuge, 2 C. B. 808. 6 In 7 Halsbury's Laws of England, 366, it is said: "The statute has no application to contracts for an executed consideration (citing Knowlman v. Bluett, L. R. 9 Exch. 1; Souch v. Straw-bridge, 2 C. B. SOS. As to executed consideration, see page 384, 7 Laws of England); or where the contract is to be entirely executed by one party within the year [citing Donellau v. Read, 3 B. & Ad. 899, where the plaintiff, a landlord, had laid out 60 on improvements in consideration of the tenants agreeing to pay him 5 more rent; Smith v. Neale, 26 L. J. C. P. 143. See 1 Smith L. C. (11th ed.) 319), nor is a contract under the terms of which it is possible that one of the parties may wholly perform his part of the contract within the year, although the performance by the other party extends over several years (citing Cherry v.Heming, |1849] 4 Exch. 631, assignment of vatent, the price to be paid by instal-ments extending over several years)."

7 Reeve c. Jennings, [1910] 2 K. B. 522. The facts of the case were that the plaintiff had employed the defendant orally without limit of time other than that a week's notice might terminate the arrangement. The defendant promised further that he would not set up a competing business for three years after leaving the defendant's service. The defendant remained with the plaintiff for about two years and set up a competing business within three yean thereafter. The court assumed as a fact that when the original arrangement was made it was thought probable that the employment might last more than a year.

8Feraald v. Town of Guman, 123 Fed. 797; Wehner v. Bauer, 160 Fed. 240; Rake's Admr. v. Pope, 7 Ala. 161; Diamond v. Jacquith, 14 Aril. 119, 125 Pac. 712, L. R. A. 1915 D. 880; Enos v. Anderson, 40 Colo. 395, 93 Pac. 475; Johnson p. Watson, 1 Ga. 348; Fnusr v. Gates, 118 111. 99, 112, 1 N. E. 817; MacDonald v. Crosby, 192 111. 283, 61 N. E. 505; Hodgena v. Shultz, 92 111 decisions so holding rest. In some of them at least it is stated broadly that full performance on one side, whenever made, takes the case out of the statute; but generally it seems to be regarded as essential that such performance be made within a year. There are, however, numerous decisions which seem supported by a more reasonable construction of the statute which hold that unless the contract from its inception is fully performable within a year on both sides, it is within the statute; and if after full performance on one side, performance on the other side still cannot take place within a year, the statute is applicable; and any redress which can be obtained for either full or partial performance must be based on principles of quasi-contract.9

App. 84; Wolke v. Fleming, 103 Ind. 106, 2 N. E. 325, S3 Am. Rep. 495; Piper v. Fosher, 121 Ind. 407, 23 N. E. 269; Smalley v. Greene, 62 Is. 241, 3 N. W. 78; Atchison, etc., Ry. Co. v. English, 38 Kan. 110, 16 Pac. 82; Heety v. Reed, 30 Kans. 380, 102 Pac. 846; Dant v. Head, 90 Ky. 255,13 S. W. 1073, 29 Am. St. Rep. 369; Jones v. Comer, 26 Ky. L. Rep. 773, 1104, 76 8. W. 392, 77 S. W. 184; Whitley v. Whitley's Adm., 26 Ky. L. Rep. 134,80 S. W. 825; Holbrook v. Armstrong, 10 Me. 31; Ellicott v. Turner, 4 Md. 476; Warren v. Ayree, 126 Md. 551, 95 Atl. 62, 54; Lally v. Crookston Lumber Co., 85 Minn. 257, 88 N. W. 846; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Marks v. Davis, 72 Mo, App. 567; Kendall v. Garneau, 55 Neb. 403, 75 N. W. 852; Blinding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Perkins v. Clay, 54 N. H. 518 (but sec Emery v. Smith, 46 N. H. 151); Berry v. Doremus, 30 N. J. L. 399 (but see Okin v. Seu'dor, 78 N. J. L. 54, 78 Atl. 770, where the court admits that a promise to guarantee the condition of a sidewalk after a year would be within the statute, though the consideration had been fully paid); Matter of Chamberlain, 146 N. Y, App. D. 583, 131 N. Y. S. 245; Durfee v. O'Brien, 16 R. I. 213, 14 Atl. 857;

Compton v. Martin, 5 Rich. I.. 14; Bates v. Moore, 2 Bailey, 614; Seddon v. Rosenbaum, 85. Va. 928, 9 S. E, 326, 3 L. R. A. 337; Reed v. Gold, 102 Va. 37, 45 S. E. 868; McClellan v. Sanford, 26 Wis. 595; Grace v. Lynch, 80 Wis. 166, 49 N. W. 761; Phillips v. Holland, 149 Wis. 624, 136 N. W. 191.

9 Warner v. Texas & P. Ry. Co., 64 Fed. 922, 4 C. C. A. 673 (the decision was affirmed in 164 U. S. 418, 41 L. Ed. 496, but the upper court holding the defendant's promise performable within a year found it unnecessary to consider the effect of the plaintiff's performance); Jackson Iron Co. v. Negaunee Co., 65 Fed. 298, 12 C. C. A. 636; Patten ». Hicks, 43 Cal. 509; Marcy v. Maroy, 9 AUen, 8; Frary v. Sterling, 99 Mass. 461; Kelley v. Thompson, 175 Mass. 427, 56 N. E. 713; Whipple v. Parker, 29 Mich. 369; Dietrich v. Hoe-felmeir, 128 Mich. 145, 87 N. W. 111 (cf. Paul v. Graham, 193 Mich. 447,160 N. W. 616,617, and cases cited); Buckley v. Buckley, 9 Nev. 373; Broadwell v. Getman, 2 Denio, 87; Day v. New York Central R. Co., 51 N. Y. 683, 80 N. Y. 616; Hubbard v. Hubbard, 151 N. Y. App. D. 174, 135 N. Y. 9. 008; Reinheimer v. Carter, 31 Ohio St. 670, 687; Pierce v. Payne, 28 Vt. 34; Parka v. Francis, 50 Vt. 626,28 Am. Rep. 517.