Sometimes parties not only enter into an oral contract within the Statute of Frauds but further agree to reduce their oral agreement to writing. If this last agreement can be specifically enforced it will result in making the principal agreement enforceable; or if damages can be recovered for breach of the contract to make a writing these damages will be indentical with the damages recoverable on the principal agreement if that were enforceable.87 Whether a court should thus allow in effect the enforcement of the principal agreement though that is oral depends upon its attitude towards the Statute of Frauds. Technically the agreement to reduce the main contract to writing is not within the Statute; and courts desirous of limiting the statute to the narrowest possible field will be disposed to enforce the contract; 88 but as a practical matter the enforcement, of such an agreement is tantamount to taking the main contract out of the statute, though the whole transaction is oral, and is therefore opposed to the spirit of the act. For this reason the better view seems that the subsidiary agreement is unenforceable.89
84 Jenness v. Wendell, 51 N. H. 63, 12 Am. Rep. 48; Coffman v. Hampton, 2 W. & S.377, 37 Am. Dec fill; Tompkins v. Haas, 2 Barr, 74. In the New Hampshire ease the purchases were not even all made on the same day. But see the contrary and Bounder decisions, Emerson v. Heelia, 2 Taunt. 38; Couston v. Chapman, L. R. 2 H. L. Sc. 250, 262. See also Hess v. Dicks, 181 Ia. 342,164 N. W. 639.
85Marsh v. Hyde, 3 Gray, 331; Standard Wall Paper Co. v. Towns, 72 N. H. 324, 56 Atl.744.
86 Tompkins v. Sheehan, 158 N. Y. 617, 53 N. E. 502.
87Clark v. Bradford Gas, etc., Co., (Del. 1916), 98 Atl. 368; Pratt v. Hudson River Railroad Co., 21 N. Y. 305; McLachlin v. Whitehall, 114 N. Y. App. Div. 315, 99 N. Y. S. 721.
88Hollis v. Whitedng, 1 Vera. 151 (lease); Shakespeare v. Alba, 76 Ala. 351 (lease); Brickey v. Continental Gin Co., 113 Ark. 15, 166 S. W. 744 (insurance policy for more than a year); Eaton v. Whitakar, 18 Conn. 222, 44 Am. Deo. 586 (lease); Julin v.
Bauer, 82 EL App. 157 (contract extending maturity of a debt); Jones v. Bennett, 40 Okla. 664, 140 Pac. 148 (lease). In some of these decisions the abjection made was that the principal contract could not be fulfilled within a year, and the distinction may be suggested between an oral contract for performance extending over a longer period than a year and an oral contract for the conveyance of an estate, such as a lease which will not determine for more than a year. Doubtless the making of such a conveyance is wholly perfonnable within a year and the conveyance when made is at once operative for the whole term but conveyances often include covenants express or implied which cannot be satisfied until the expiration of the estate conveyed, and an agreement to give a conveyance is an agreement to give one with the usual covenants, and if the operation of these is to extend for more than a year, the fact that the major part of the contract can be performed within a year seems immaterial.
89 MoKinley v. Lloyd, 128 Fed. 519, 521; Clark v. Bradford Gas ft Power Co., (Del. 1916), 98 Atl. 368 (contract not to be performed within a year); Caylor v. Roe, 99 Ind. 1 (contract for the sale of land); Sarkisian v. Teele, 201 Mass. 593, 88 N. E. 333 (contract not to be performed within a year); McLachlin v. Whitehall, 114 N. Y. App. Div. 315, 99 K. Y. S. 721 (contract not to be performed within a year); Am-burger v. Marvin, 4 E. D. Smith, 293 (contract not to be performed within a year). See also supra, Sec. 457.