The distinction is also fine but important between - 1. An agreement which may be performed, as the parties intend that it shall be performed, within a year, though they fully expect that performance will take a longer period, and

64he distinction between a defeasance and a condition precedent is alluded to in - Warner v. Texas & Pacific Ry. Co., 164 U. S. 418, 41 L. Ed. 495. The court in discussing the case of Packet Co. v. Sickles, 5 Wall. 580, 18 L. Ed. 550aid: "That was an action upon an oral contract by which a steamboat company agreed to attach a patented contrivance, known as the Sickles cut-off, to one of its steamboats, and if it should effect a saving in the consumption of fuel, to use it on that boat during the continuance of the patent, if the boat should last so long; and to pay to the plaintiffs weekly, for the use of the cut-off, three-fourths of the value of the fuel saved, to be ascertained in a specified manner."

"It appears to have been assumed, almost without discussion, that the contract, according to its true construction, was not to be performed in less than twelve years, but was defeasible by an event which might or might not happen within one year. It may well be doubted whether that view can be reconciled with the terms of the contract itself, or with the general current of the authorities. The contract, as stated in the fore part of the opinion, was to use and pay for the cut-off upon the boat "during the continuance of the said patent, if the said boat should last so long." 5 Wall. 581, 594; s. c. (Lawyers' Cop. Pub. Co. ed.), bk. 18, pp. 552, 554. The terms "during the continuance cf" and "last so long" would seem to be precisely equivalent; and the full performance of the contract to be limited alike by the life of the patent, and by the life of the boat. It is difficult to understand how the duration of the patent and the duration of the boat differed from one another in their relation to the performance or the determination of the contract; or bow a contract to use an aid to navigation upon a boat, so long as she shall last, can be distinguished in principle from a contract to support a man, so long as he shall live, which has been often decided, and is generally admitted, not to be within the statute of frauds." So in McGrath Co. v. Marchant, 117 Md. 472, 83 Atl. 612, a contract of service for more than a year "provided" the employer should remain in business for that period, was held not within the statute. See also Smith v. Conlin, 19Hun, 234,

2. An agreement which cannot be performed within a year, as the parties intend and expect that it shall be performed, though performance in a different way within that time is conceivably possible and if so made would satisfy the literal words of the contract.

Agreements of the first sort are not within the statute; 65 agreements of the second sort are held at least by many courts to be within the statute. The opinion of the parties as to the time which a given performance will take is immaterial, but their mutual intentions as to the method of performance is important, and if that method cannot possibly be carried out within a year, the fact that another method which would satisfy the legal obligation is logically conceivable will not save the agreement. The leading case to this effect is Boydell v. Drummond; 66he plaintiffs had agreed to publish a series of prints in eighteen numbers at a price of three guineas a number. The prospectus announced that "one number at least should be published annually, and the proprietors were confident they should be enabled to produce two numbers within the course of every year." The defendant, a subscriber, was sued for breach of his agreement to take numbers tendered to him. The court held the agreement within the statute. It is stated by Lord Ellenborough that even though "contrary to all physical probability" the contract could have been performed by the plaintiff within a year, "the whole work could not have been obtruded upon the subscribers at once, so as to demand payment of the whole subscription from them within a year." But in some of the cases hereafter referred to it seems that performance of the agreements in question if completed within a year could not have been objected to; and the agreements were nevertheless held within the statute because performance in the way intended and expected, though not specially contracted for, could not be made within a year.67 Thus a con-

65ee cases cited supra, Sec. 495.

66 East, 142.

67 Renin v. Butters, 20 Me. 119, the contract was thus stated, "Said Butters doth agree to clear a piece of ground, containing eleven acres, on lot No. 8, in the 10th range of lots in

Exeter, to be done in three yearsrom date, in a clean and workmanlike manner, and [one acre] well seeded down this present spring, and one acre the spring following, and nine acres in the spring of 1836. And the said Shaw, on his part, doth agree to let the said tract to do construction or engineering work which can only be fulfilled within a year by abnormal and unusual methods not within the contemplation of the parties has been held within the statute.68 So an oral promise to pay $400 in monthly indo for three years), he will pay the mortgagor any balance received in excess of the amount of the mortgage debt,73 have all been held within the statute.74 Clearer cases are where the contract could not be performed according to the ordinary course of nature within a year, as where crops are to be produced,75 or the future young of animals are agreed to be sold,76 at a time which must fall beyond the end of a year.

Butters have all the proceeds of said land three years, in consideration of a faithful performance of the above agreement, excepting the first, two acres seeded down, which the said Shaw is to have the grass after seeded down." The court held the contract within the statute, saying: "It is urged, that the defendant might have cleared up the land, and have seeded it down in one year, and thereby have performed his contract. This may have been within the range of possibility; but whether so or not must depend upon a number of facte, of which the Court are uninformed. This however is not a legitimate inquiry under this contract. We are not to inquire what, by possibility, the defendant might have done, by way of fulfilling his contract. We must look to the eon-tract itself, and see what he was bound to do; and what, according to the terms of the contract, it was the understanding that he should do. was it the understanding and intention of the parties, that the contract might be performed within one year?" In Goodrich v. Johnson, 66 Ind. 258, 262, the court said: "The law on the subject now under consideration is thus stated in section 273 of Browne's treatise on the Statute of Frauds: "That the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which is not expected to be performed within the space of a year from the making; but that it means to include any agreement which, fairly and reasonably interpreted, does not admit of a valid execution within that time.'" See also Eikelman v. Perdew, 140 Cal. 687, 74 Pae. 291; Warren c. Ayres, 126 Md. 551, 95 Atl. 53.