2 Bank of Lansingburgh v. Crary, 1 Barb. 542; Warren v. Leland, 2 Barb. 619.
§ 1442. The next clause requires that all contracts be in writing unless they "are to be performed within one year from the making thereof." The agreement need not be express that the contract be performed within the year, provided it be capable of being performed within the year, and that it appear to have been the understanding and expectation of the parties that it should be so performed; and, in such case, the mere fact that the contract is not actually and completely performed within the year does not bring it within the statute.
1 Souch v. Strawbridge, 2 C. B. 808; Cocking v. Ward, 1 C. B. 858; Kelly v. Webster, 12 Ib. 283; Brackett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Ib. 549; Thomas v. Dickinson, 14 Barb. 90; Linscott v. Mc-Intire, 15 Me. 201. See Walker v. Hill, 5H.& N. 419; Gammon v. Butler, 48 Me. 344; Swain v. Seamens, 9 Wall. 254. A mutual transfer of possession of lands under a parol contract for an exchange, followed by a possession of nineteen years under it, is a valid transfer of titles, and not void under the Statute of Frauds. Moss v. Culver, 61 Penn. St. 414 (1870). So an action may be maintained upou an oral promise to pay for land at a certain sum by the acre after the delivery and acceptance of a deed thereof. Nutting v. Dickinson, 8 Allen, 540 (1864).
Again, although the probability be that the contract will not be performed within the year, yet if it be susceptible of performance within the time, it will not be within the statute.1 So, if it be merely optional with one party, if he shall perform it within a year or not, it is not within the statute.2 But where by the express agreement of the parties the contract is not to be performed within the year from the making thereof, it will be within the statute, although the work contemplated be only for a year's time. Thus a contract made on July 20th for a year's service to be rendered from the 24th of July must be in writing.8 But a contract for a year with no time stated when it shall commence is not within the statute, since it may commence immediately.4 So if the service is expressly to commence on the very next day after the contract is made.5 But a contract for several years with annual payments is within the statute,6 even though it be within the terms of the contract that either party may terminate it within the year.7 So an oral contract to labor for two years "unless the employment be determined by a three months' notice " is void under the Statute of Frauds, since the defeasance does not operate to the entire performance or fulfilment of the contract, but rather to its determination or abandonment without full performance.8
1 Lyon v. King, 11 Met. 411; Wells v. Horton, 4 Bing. 40; Peters v. Westborough, 19 Pick. 364; Gault v. Brown, 48 N. H. 183; Heath v. Heath, 31 Wis. 223; Knowlman v. Bluett, L. R. 9 Ex. 1 (1873).
2 Kent v. Kent, 18 Pick. 569.
3 Bracegirdle v. Heald, 1 B. & Ald. 722. See, also, Snelling v. Lord Huntingfield, 1 C, M. & R. 20.
4 Kent v. Kent, 18 Pick. 569; Russell v. Slade, 12 Conn. 455; Linscott v. Mclntire, 15 Me. 201; Plimpton v. Curtiss, 15 Wend. 336.
5 Cawthorne v. Cordrey, 13 C. B. (N. S.) 406.
6 Birch v. The Earl of Liverpool, 9 B. & C. 392. See, also, Lower v. Winters, 7 Cow. 283; Derby v. Phelps, 2 N. H. 515; Hinckley v. South-gate, 11 Vt. 428; Harris v. Porter, 2 Harrington, 27; Sweet v. Lee, 4 Scott, N. R. 77; Lapham v. Whipple, 8 Metcalf, 59; Wilson v. Martin, 1 Denio, 602; Pitkin v. Long Island R. R. Co., 2 Barb. Ch. 221; Drummond v. Burrell, 13 Wend. 307; Giraud v. Richmond, 2 C. B. 835.
7 Harris v. Porter, 2 Harrington, 27.
8 Dobson v. Collis, 1 H. & N. 81 (1856). And see Birch v. Earl of Liverpool, 9 B. & C. 392; Harris v. Porter, 2 Harring. 27; Tolley v. Greene, 2 Sandf. Ch. 91; Saunders v. Kastenbine, 6 B. Monroe, 17; Bull v. McCrea, 8 B. Monroe, 422; Hill v. Hooper, 1 Gray, 131.
§ 1443. So, also, where by the subject-matter of the contract and the circumstances of the case it appears clearly that it was the intention and understanding of the parties that the contract was not to be performed within a year, the statute will apply.1 Such an understanding should, however, clearly appear from the contract as a whole.2
§ 1444. Again, where the time when the contract is to be performed depends on some contingency, it is within the statute if the contingency cannot happen within the year, but if it may happen, it is not within the statute, whether it actually do or not.3 Thus a promise to pay a certain sum on the event of a person's marriage or death,4 or a stipulation not to engage in a certain business during life, would not be within the statute;5 since the marriage or death might take place within the year. But a contract to pay a certain price per week for the use of a patent, during its continuance (which was in fact twelve years), if the boat on which it was used should last so long, has been held within the statute, although it might be defeated within the year.6
1 Herrin v. Butters, 20 Me. 119; Boydell v. Drummond, 11 East, 142; Peters v. Westborough, 19 Pick. 364. But see Moore v. Fox, 10 Johns. 244, where it is said that there must appear to be a speci/ic and express agreement to bring the contract within the statute. See, also, Fenton v. Emblers, 3 Burr. 1278.
2 Thus, where the defendant told the plaintiff he was not able to marry her then, but promised her he would marry her within four years, it not appearing that the parties understood that the promise was not to be performed within one year, such promise is not within the Statute of Frauds. Lawrence v. Cooke, 56 Me. 187 (1868).
3 Wells v. Horton, 4 Bing. 40; Foster v. McO'Blenis, 18 Mo. 88; Gilbert v. Sykes, 16 East, 150; Souch v. Strawbridge, 2 C. B. 808: Blake v. Cole, 22 Pick. 97; Roberts v. The Rockbottom Co., 7 Met. 46; Clark v. Pendleton, 20 Conn. 495; McLees v. Hale, 10 Wend. 426. But see Tolley v. Greene, 2 Sandf. Ch. 91.