This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In most jurisdictions it is held that the statute has no application to a contract which is to be performed on one side within the year and on the other side not within the year.1 Some jurisdictions hold that such contracts are within the statute of frauds.2 Their view seems to be correct on sound principle, though overborne by weight of authority. The courts that hold such contracts are not within the statute seem to have confused the right to recover property parted with under an unenforceable contract with the right to enforce the contract.3
622; 24 N. W. 638; Warren, etc., Co. v. Holbrook, 118 N. Y. 586; 16 Am. St. Rep. 788; 23 N. E. 908; Moore v. Fox, 10 Johns. (N. Y.) 244; 6 Am. Dec. 338; Walker v. R. R., 26 S. C. 80; 1 S. E. 366; Long Mfg. Co. v. Gray, 13 Tex. Civ. App. 172; 35 S. W. 32. "In order to bring a ease within the operation of the statute of frauds, there must be an express and specific stipulation in the contract that it is not to be performed within the year, or it must appear therefrom that it was not the intention of the parties that the agreement should be performed within that period." Powder River Livestock Co. v. Lamb, 38 Neb. 339, 348; 56 N. W. 1019.
5Woodall v. Mfg. Co., 9 Colo. App. 198; 48 Pac. 670; Russell v. Slade, 12 Conn. 455; Wiggins v. Keizer, 6 Ind. 252; Aiken v. Nogle, 47 Kan. 96; 27 Pac. 825; Cole v. Singerly. 60 Md. 348; Reynolds v. Bank. 62 Neb. 747; 87 N. W. 912; Powder River Livestock Co. v. Lamb, 38 Neb. 339; 56 N. W. 1019; Warren, etc., Co. v. Holbrook, 118 N. Y. 586; 16 Am. St. Rep. 788; 23 N. E.
908; Kent v. Kent, 62 N. Y. 560; 20 Am. Rep. 502.
6Kiene v. Shaeffing, 33 Neb. 21; 49 N. W. 773.
7 Woodall v. Mfg. Co., 9 Colo. App. 198; 48 Pac. 670.
8 Jones v. Pouch, 41 O. S. 146.
1 Miles v. New Zealand, etc., Co., 32 Ch. Div. 266; Donellan v. Read, 3 Barn. & Adol. 899; Trimble v. Lanktree, 25 Ont. 109; McDonald v. Crosby, 192 111. 283; 61 N. E. 505; Lowman v. Sheets, 124 Ind. 416; 7 L. R. A. 784; 24 N. E. 351; Houghton v. Houghton, 14 Ind. 505; 77 Am. Dec. 69; Smalley v. Greene, 52 la. 241; 35 Am. Rep. 267; 3 N. W. 78; Mackey v. Thisler, 7 Kan. App. 276; 53 Pac. 767; McDowell v. Miller, 1 Kan. App. 666; 42 Pac. 402; Dant v. Head, 90 Ky. 255; 29 Am. St. Rep. 369; 13 S. W. 1073; Bot-kin v. Land Co. (Ky.), 66 S. W. 747; Langan v. Iverson, 78 Minn. 299; 80 N. W. 1051; Blanding v. Sargent, 33 N. H. 239; 66 Am. Dec. 720; Durfee v. O'Brien, 16 R. I. 213; 14 Atl. 857 ; Sheehy v. Adarene, 41 Vt. 541; 98 Am Dec. 623; Grace v. Lynch, 80 Wis. 166; 49 N. W.
Among the cases held not to be within the statute because performance on one side is to be made within the year, are the following: A contract whereby A delivers to B a certain number of sheep, and B agrees to deliver back double the number at a time longer than one year from the making of the contract;4 a contract whereby A conveys a lease and a trade-mark to B, and B agrees to pay one hundred dollars a year for eight years in consideration of the trade-mark,5 a contract whereby a grantee assumes and agrees to pay a debt of grantor not due for more than a year; an oral promise to indemnify against liability on a bond which is to take effect in the future and continue in force a year;6 a contract to repay,
751; Washburn v. Doseh, 68 Wis. 436; 60 Am. Rep. 873; 32 N. W. 551; Treat v. Hiles, 68 Wis. 344; 60 Am. Rep. 858; 32 N. W. 517; McClelland v. Sanford, 26 Wis. 595. This rule was laid down in England in Donellan v. Read, 3 B. & A. 899, was doubted in Souch v. Straw-bridge, 2 M. G. & S. 808, was nevertheless followed in Cherry v. Hem-ing, 4 Exch. 631, and was criticised but held to be too firmly settled to be overthrown in Miles v. New Zealand, etc., Co., 32 L. R. Ch. D. 266. See the historical discussion of the doctrine in Kendall v. Garneau, in which after summing up the history of the doctrine in England and America the court held that the Nebraska legislature, in adopting the statute, adopted the English rule as a settled principle of construction, saying: "We here adopt the English rule, not as being a correct construction of their statute, but because we are convinced that in the light of history it is the construction which our legislature intended should be adopted." Kendall v. Garneau, 55 Neb. 403, 408; 75 N. W. 852.
2Marcy v. Marcy, 9 All. (Mass.) 8; Pierce v. Pierce, 28 Vt. 34.
3 See Sec. 749 et seq.
4 Trimble v. Lanktree, 25 Ont. 109; Contra, Dietrich v. Hoefel-meier, 128 Mich. 145; 87 N. W 111.
5Dant v. Head, 90 Ky. 255; 29 Am. St. Rep. 369; 13 S. W. 1073.
6 Reynolds v. Bank, 62 Neb. 747; 87 N. W. 912; Langdan v. Iverson, 78 Minn. 299; 80 N. W. 1051; Kendall v. Garneau, 55 Neb. 403; 75 N. W. 852. But an agreement to pay "at its maturity" a note due in more than one year is within the statute even if the maker or guarantor might by exercising an option to at an interval of time greater than a year, money already borrowed,7 and a contract of subscription to corporate stock which passes title at once, though payment is not to be completed or the certificate to issue for more than one year.8
A contract to execute an instrument within the year, which will, when executed, affect the rights of the parties for a period longer than a year, has been held not within this clause of the statute; such as an oral agreement to execute a written lease for the term of three years, within seven months,9 or to dismiss a suit and execute a new contract extending payment for five years.10