1 A parol contract by which a son agreed to work for his father while he lived, to be paid at his death, was held not void as a contract not to be performed within a year: Updike v. Ten Broeck, 32 N. J. 105. And see also Worthy v. Jones, 11 Gray, 168; Richardson v. Pierce, 7 R. I. 330; Scoggin v, Blackwell, 36 Ala. 351; Marcy v. Marcy, 9 Allen, 8; Berry v. Doremus, 30 N. J. 398; Doyle v. Dixon, 97 Mass. 208; Swift v. Swift, 46 Cal. 266; Larimer v. Kelly, 10 Kan. 298; Riddle v. Backus, 38 Iowa, 81; Blair Land Co. v. Walker, 39 lb. 406.-s.

(b) Fenton v. Emblers, 3 Burr. 1278.

(c)4 Bing. (13 E. C. L. B.) 40.

(d) 2 C. B. (52 E. C. L. R.) 808; 15 L. J. (C. P.) 170. This decision was followed in the similar case of Knowlman v. Bluett, L. R. 9 Ex. 1, 307 (Ex. Ch.); 43 L. J. (Ex.) 29, 151 (Ex. Ch.). 150

Thus, also, it is held that, where it appears not to have been the intent of the parties that the agreement should extend beyond a year, although it might extend far beyond that time, it need not be in writing; but where it appears to be the intent of the parties that the agreement shall not be performed within one year from the making, it must be in writing, although determinable upon a contingency within a year. Therefore, where by the terms of the contract it is to last for a longer *period than a year, a custom by which it might be put an end to by one of the parties within that period does not take it out of the operation of the statute (e). In like manner an undertaking to pay an annuity for life must be in writing, although it may terminate by death within a year (f). And so a contract for service for more than a year, but subject to determination within the year on a given event, is within the 4th section. The circumstance that it is defeasible will not make it other than a contract for more than a year. If it were not so, contracts for any number of years might be made by parol, provided they contained a defeasance which might come into operation before the end of the first year (g). So an agreement on the defendant's part not to set up the trade of a tailor within five miles of D. during the joint lives of himself and the plaintiff is prima facie not to be performed within a year, and therefore within this section of the statute (h).

Where, however, all that is to be done by one party, as the consideration for what is to be done by the other, actually is done within the year, the statute does not prevent that party suing the other for the non-performance of his part of the *contract. Where the one has the full benefit of the contract, the law will not permit the other to withhold the consideration. As, where a landlord had agreed to lay out 50 on improvements on the premises demised, and the tenant, in consequence, had undertaken to pay 5 a year additional rent for the remainder of his term, of which there were several years, and the landlord laid out the 50 within the year, he was allowed to recover the additional rent, although the agreement was not in writing (i);l

(e) Birch v. Earl of Liverpool, 9B.&C. (17 E. C. L. R.) 392.

(/) Sweet v. Lee, 3 M. & G. (40 E. C. L. R.) 452.

(g) Dobson v. Collis, 1 H. & N. 81; 25 L. J. (Ex.) 267.

(h) Davey v. Shannon, 4 Ex. Div. 81; 48 L. J. (Q. B., etc.) 459.

(i) Donellan v. Reed, 3 B. & Ad. (23 E. C. L. E.) 899; Sonch v. Strawbridge, 2 C. B. (52 E. C. L. R.) 808; Cherry v. Heming, 4 Ex. 631. See Nunn v. Fabian, L. E. 1 Ch. 35; 35 L. J (Ch.) 140.

1 It has been held in England that the words in the statute " not to be performed," mean not to be performed on either side, that is, that an agreement does not come within the statute provided all that is to be done by one of the parties is to be done within a year : Donellan v. Reed, 3 B. & Ad. (23 E. C. L. R.) 899. There the defendant, who was the plaintiff's tenant under a lease of 20 years, promised, in consideration that the latter would lay out 50 in alterations, to pay an additional 5 annually, during the remainder of the term. The alterations were finished within the year, and to an action for the additional 5, the defendant pleaded that the contract could not possibly be performed within a year, and therefore ought to have been written. But the Court held that as the contract was entirely executed on one side within the year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the Statute of Frauds did not apply. Mr. Smith has questioned the propriety of this decision as being opposed to Peter v. Compton, both in his notes to that case, in the Leading Cases (vol i. p. 614, 8th Am. ed.), and in his "Mercantile Law" (p. 440), but in the very recent case of Cherry v. Heming, 4 Exch. 631, the facts and the decisions were much the same as in Donellan v. Reed, and the Court, referring to the remarks of Mr. Smith, were of opinion that they were not sufficient to induce them to doubt the authority of that case. On this side of the Atlantic the construction thus adopted has been followed in some cases: Holbrook v. Armstrong, 10 Me. 31; Rake v. Pope, 7 Ala. 161; Johnson v. Watson, 1 Ga. 348; but rejected in others: Broadwell v. Getman, 2 Den. 87; Cabot v. Haskins, 3 Pick. 83; Lockwood v. Barnes, 3 Hill, 128. The practical difference between these classes of cases may be thus explained. " It often happens," as was said in Donellan v. Reed, " in cases of parol sale of goods, that they are not to be paid for in full till after the expiration of a longer time than a year, and surely the law would not sanction a defence on that ground, where the buyer had had the full benefit of the goods on his part." Under such circumstances, however, for this enactment applies only to contracts not to be performed on either side within the year. Therefore, it cannot be doubted that although by the operation of the statute, the seller might fail to recover the price of the goods by the terms of the contract, he could not fail to recover upon a quantam valebant: Poulter v. Killingbeck, 1 B. & P. 397; Earl of Falmouth v. Thomas, 1 Cr. & M. 109; Teal v. Auty, 2 B. & B. (6 E. C. L. R.) 99; Philbrook v. Belknap, 6 Vt. 383; and the difference would therefore be, that under Donellan v. Reed, the plaintiff could recover merely upon proving the contract and its performance on his part, while under the opposite authorities, the benefit to the defendant must be shown.