How the period of a year is to be calculated has given rise to some litigation. If a contract, for instance a contract of service, is for the term of a year beginning on the day of the contract, there is no doubt that the statute is inapplicable.87 It has also been held that an agreement for a year, performance for which is to begin on the day following the agreement, is not within the statute, since performance will end on the day exactly one year from the date of making the agreement; and the old maxim that the law disregards fractions of a day is invoked to prove immaterial any difference in the hour of the day when the contract was made, and the close of business hours.88 Other courts, however, discard fiction and calculating the period exactly hold the agreement within the Statute.89 But if an offer for a year's employment to begin at a future day is not accepted until the day when the employment begins, as the contract does not arise until the latter day the agreement is binding though oral.90 If in any case performance is to begin later than the day following the formation of the contract and is to continue for a year thereafter, authority is uniform that the agreement is within the statute.91 If the terms of a year's engagement do not specify when performance is to begin, the contract may be oral unless the parties in some way indicate that they do not intend that performance shall begin at once.92
87Britain v. Rossiter, 11 Q. B. D. 123; Russell v Slade, 12 Conn. 455; Sprague v Foster, 48 111pp. 140; Aiken v. Nogle, 47 Kara. 96, 27 Pac 825; Galvin v. Detroit Windshield Co., 176 Mich. 569, 142 N. W. 742; O'Donnell v. Daily News Co., 119 Minn. 378,138 N. W. 677; A. B. Smith Co. v. Jones, 76 Miss. 325, 22 So. 802; Embrey v. Hargadine-McKittrick Co., 115 Mo. App. 130, 91 S. W. 170; Sbeingold v. Baer, 145 N. Y. App. D. 493, 129 N. Y. S. 924. See also Sanborn v. Fireman's Ins. Co., 16 Gray, 448, 77 Am. Deo. 419.
88Smith v. Gold Coast Explorers, Ltd.,  1 K. B. 285, 538 (following Cawthorne v. Cordrey, 13 C. B. (N. S.) 406, and by implication overruling Dollar v. Parkington, 84 L. T. 470]; Dickson v. Frishee, 52 Ala. 165, 23 Am. Rep. 565; Beller v. Klotz, 31 Dom. L. R. 647.
89 Raymond v. Phipps, 215 Mass. 569, 102 N. E. 905; Brosius v. Evans, 90 Minn. 621, 97 N. W. 373; Keller v.
Mayer Fertiliser Co., 1S3 Mo. App. 120, 132 S. W. 314; McElroy v. Indium, 32 N. J. Eq. 828; Billington v., Cahill 51 Hun, 132, 4 N. Y. S, 669. See also Braoegirdle v. Heald, 1 B. & Ald. 722, 726; Grant v. New Departure Mfg. Co., 85 Conn. 421, 83 Atl. 212; Reynolds v. Wymote Bank, 62 Neb. 747, 752, 87 N. W. 912. So exactly was time calculated in Shipley v. Patton's Admr., 21 Ind. 169, that a contract, whereby A sold a horse to B, and warranted that it should be sound for one year thereafter, and agreed that, if, at tor the expiration of one year, the horse should prove unsound he would take it back and pay the plaintiff one hundred dollars, was held within the Statute of Frauds, since the return of the horse must follow by however small a fraction of time, the expiration of a year.
90Mobile, etc., R. Co., p. Hayden, 116 Tenn. 672, 94 S. W. 940. See also McArthur v Times Printing Co., 48 Minn. 319, 51 N. W. 216, 31 Am. St.
Sec. 603. Subsequent recognition of an oral contract which was not performable within a year. If an executory contract is confessedly not performable within a year from the time when it was made, and is therefore obnoxious to the statute, what is the effect of a subsequent recognition of the contract at a time when the whole or the remainder of it could be performed within a year? If the recognition, amounts to a new contract upon which suit could be brought, it is obvious that this new contract is not within the statute. Less than this would be insufficient. The question is most often involved in contracts of service. If after a contract for yearly hiring, at the close of one year's service the employer and employee continue to perform as before, so that by implication a contract of service for another year arises,93he statute is inapplicable.94 In such a case the parties have made no oral bargain for the new year prior to the implication which arises at the beginning of performance at the opening of the new year. If there were no contract then implied there would, therefore, be no agreement whether enforceable or unenforceable between the parties for the coming year. It may be asked, what is the difference in principle if there were a prior oral bargain for the coming year made some time before the beginning of performance? Would not the tender of the first beginnings of performance by one party, and the acceptance of them by the other party necessarily imply a fresh assent to or acceptance of the terms of the oral bargain at a time when the contract could be performed within a year. Such an implication of fact seems fairly warranted.95 It has indeed been said of such a case in the English Court of Appeal:96 "The contract is not void under the 4th section; the contract exists, but no one is liable upon it. It seems to me impossible that a new contract can be implied from the doing of acts which were clearly done in performance of the first contract only, and to infer from them a fresh contract would be to draw an inference contrary to the fact. It is a proposition which cannot be disputed that no new contract can be implied from acts done under an express contract, which is still subsisting; all that can be said is that no one can be charged upon the original contract because it is not in writing."
91 the following cases a year's agreement was to begin within a few days from the making of the oral agreement which was held invalid. Snell-ing v. Lord Huntinfieid, I C. M. & R. 20; Wickson v Monarch Cycle Mfg. Co., 12S Cal 166, 60 Pac. 764, 79 Am. St. Rep. 36; Grant v New Departure Mfg. Co., 85 Conn. 421, 83 Atl. 212; Hearne v Chadbourne, 65 Me. 302; Davis v. Michigan Mutual Life Ins. Co., 127 Mich. 559 6 N. W. 1021; Reynolds v First Nat. Bank, 62 Neb. 747, 87 N. W. 912;