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.
Human life is uncertain and any person alive at a given time may die within a year from that time. On this principle a contract which by its terms is not to be performed for a longer period than during the life of a given person is held not to be within this clause of the statute.1 Thus a contract to support one for life,2 or to perform services for the life, either of the
8 Sax v. R. R.. 125 Mich. 252; 84 Am. St. Rep. 572; 84 N. W. 314; Harrington v. Ry., 60 Mo. App. 223.
9 Greene v. Harris, 9 R. I. 401.
10 Carter White Lead Co. v. Kin-lin. 47 Neb. 409; 66 X. W. 536; East Line, etc., R. R. v. Scott, 72 Tex. 70; 13 Am. St. Rep. 758; 10 S. W. 99.
11 Yellow Poplar Lumber Co. v. Rule, 106 Ky. 455; 50 S. W. 685; Carter White Lead Co. v. Kinlin, 47 Neb. 409; 66 N. W. 536.
12 Hintze v. Krabbenschmidt (Tex. Civ. App.), 44 S. W. 38.
13 Drew v. Billings-Drew Co., -Mich. -; 92 N. W. 774.
14McConahey v. Griffey, 82 la. 564; 48 N. W. 983.
15 Hughes v. Frum, 41 W. Va. 445; 23 S. E. 604.
16 Gadsden v. Lance, 1 McMul-lan's Eq. (S. C.) 87; 37 Am. Dec. 548.
1 Wooldridge v. Stern, 42 Fed. 311; 9 L. R. A. 129; Haussman v. Burn-ham, 59 Conn. 117; 21 Am. St. Rep. 74; 22 Atl. 1065; Atchison, etc., R. R. v. English, 38 Kan. 110; 16 Pac. 82; Carr v. McCarthy, 70 Mich. 258; 38 N. W. 241; Weatherford. etc., Ry. v. Wood, 88 Tex. 191; 28 L. R.
A. 526; 30 S. W. 859; Thomas v. Armstrong. 86 Va. 323; 5 L. R. A. 529; 10 S.E. 6.
2 Harper v. Harper, 57 Ind. 547; Bull v. McCrea, 8 B. Mon. (Ky.) 422; Stowers v. Hollis, 83 Ky. 544; Eiseman v. Schneider, 60 X. J. L. 291; 37 Atl. 623. (Citing Peter v. Compton, Skinner 353; 1 Smith Lead. Cas. 351; Kind v. Hanna, 9
B. Mon. 369; Sword v. Keith, 31 Mich. 247; McConahey v. Griffey. 82 Iowa 564: 48 N. W. 983; Hutchinson v. Hutchinson. 46 Me. 154; Blanchard v. Weeks, 34 Vt. 589; person rendering them3 or of the person for whose benefit they are to be rendered,4 is not within this clause of the statute. Accordingly a contract for permanent employment is not within this clause of the statute.5 So a contract to furnish free transportation to one and his family for his life is not within the statute.6 A contract to make a will is not within this clause of the statute, since it may be performed at once and must be performed, if at all, during the life of the promisor.7 So a contract to pay money during the life of a given person is not within the statute.8 So a contract to pay money at the death of a certain person is not within this clause of the statute,9 even if the promisor is the person at whose death the money is payable, and the law for the administration of estates will give his administrator more than a year in which to pay the money.10 So a contract not to compete in business,11 or in the practice of a profession,12 can be performed within the life of the promisor and is, therefore, not within the statute. If the contract, by its terms, is to last for more than a year it is within the statute, even though the death of one party will operate as a discharge.13 So it has been held that a contract of employment, if by its terms to last for more than a year, is within the statute even if subject to be discharged by the death of either party within the year.14 Thus an oral agreement by employee not to leave his employer's service for two years,15 or an oral agreement that each of two partners shall pay half the wages of the employee for five years,16 or a contract of apprenticeship,17 which by their terms are for so long a period as to last more than a year from the date of the making thereof, are within this clause of the statute, even though the death of either party would discharge the contract. So a contract not to engage in business for a period of time greater than a year from the time of making the contract has been held to be within the statute.18 There is, however, a divergence of authority upon this last proposition. The principle that a contract which must be performed during the life of a person in being is not within this clause of the statute, has been carried so far that many courts have held that a contract which by its terms was to last for a period of time greater than the year was nevertheless not within this clause of the statute, if it was of such character that the death of one or both of the parties thereto would discharge liability thereunder.19 Thus a contract for personal services, which is discharged by the death of either party thereto,20 or a. contract to support and educate a minor until he comes of age,21 or until his apprenticeship is ended,22 or a contract not to engage in a certain business, whether for a definite term of years23 or for such period as the vendee of the business shall continue it,24 or for an indefinite period,25 or a contract to give annual passes to A and his family for ten years, and to stop trains at his house for that period,26 or a contract to keep a horse for a year from a future date, for the use of it,27 or a contract to support a child till it reached a certain age, which event would occur more than a year after the contract was made,28 are none of them within this clause of the statute.
Burney v. Ball, 24 Ga. 505; Houghton v. Houghton, 14 Ind. 505; 77 Am. Dec. 69; Bull v. McCrea, 8 B. Mon. (Ky.) 422; Howard v. Burgen, 4 Dana (Ky.) 137.)
3 Boggs v. Laundry Co., 86 Mo. App. 616.
4 Thomas v. Feese (Ky.), 51 S. W. 150; Smalley v. Mitchell, 110 Mich. 650; 68 N. W. 978; Updike v. Ten Broeck, 32 N. J. L. 105; Kent v. Kent, 62 N. Y. 560; 20 Am. Rep. 502.
5 Carnig v. Carr, 167 Mass. 544; 57 Am. St. Rep. 488; 35 L. R. A. 512; 46 N. E. 117.
6 Park v. Turnpike Co. (Ky.), 1 L. R. A. 198.
7 Bell v. Hewitt, 24 Ind. 280; Story v. Story (Ky.), 61 S. W. 279; rehearing denied, 62 S. W. 865; Thomas v. Feese (Ky.), 51 S. W. 150; Krell v. Codman, 154 Mass. 454; 26 Am. St. Rep. 260; 14
L. R. A. 860; 28 N. E. 578; Jilson v. Gilbert, 26 Wis. 637; 7 Am. Rep. 100. If realty is to pass by the will such contracts may come under another clause of the statute. See Sec. 658.
8 Wiggins v. Keizer, 6 Ind. 252; Hutchinson v. Hutchinson, 46 Me. 154.
9 Kent v. Kent, 62 N. Y. 560; 20 Am. Rep. 502; Westropp v. West-ropp, 13 Ohio C. C. 244; 7 Ohio C. D. 14.
10 Westropp v. Westropp, 13 Ohio C. C. 244; 7 Ohio C. D. 14.
11 Dickey v. Dickinson, 105 Ky. 748; 88 Am. St. Rep. 337; 49 S. W. 761; Lyon v. King, 11 Met. (Mass.) 411; 45 Am. Dec. 219; Zanturjian v. Boormazian, - R. I. -; 55 Atl. 199.
12Blanchard v. Weeks, 34 Vt. 589.
13 "If the death of the promisor within the year would merely prevent full performance of the agreement, it is within the statute; but if his death would leave the agreement fully performed, and its purpose fully carried out, it is not." Doyle v. Dixon, 97 Mass. 208, 212; 93 Am. Dec. 80.
14Bernier v. Mfg. Co., 71 Me. 506; 36 Am. Rep. 343; Hill v. Hooper. 1 Gray (Mass.) 131; Wilkinson v. Heavenrich, 58 Mich. 574; 55 Am. Rep. 708: 26 X. W. 139: Milan v. Ry. (Tex. Civ. App.), 37 S. W. 165; Miller v. Wisener, 45 W. Va. 59; 30 S. E. 237; Hanson v. Gunderson, 95 Wis. 613; 70 N. W. 827.
15 Bernier v. Mfg. Co., 71 Me. 506; 36 Am. Rep. 343.
16 Hanson v. Gunderson, 95 Wis. 613; 70 N. W. 827.
17 Barrett v. Riley, 42 111. App. 258; Baker v. Lauterback, 68 Md. 64; 11 Atl. 703.
18 Self v. Cordell, 45 Mo. 345; Gottschalk v. Witter, 25 O. S. 76.
19 Carnig v. Carr, 167 Mass. 544; 57 Am. St. Rep. 488; 35 L. R. A. 512; 46 N. E. 117; Weatherford, etc., Ry. v. Wood, 88 Tex. 191; 28 L. R. A. 526; 30 S. W. 859; Thomas v. Armstrong. 86 Va. 323; 5 L. R. A. 529; 10 S. E. 6.