The point decided in Souch v. Strawbridge, supra, viz., that the statute only applies where, from the terms of the agreement, the contract must necessarily extend beyond one year, was, long before that decision, held the same way in Moore v. Fox, 10 Johns. 244, where a promise was made by one of a congregation to pay the plaintiff, its pastor, two dollars a year for his services as such, and he sued for services rendered many years after, and it was held that the plaintiff having received his salary semi-annnally, it must be presumed that such was the understanding at the time of the agreement, and hence the contract was not within the statute, because the plaintiff could have withdrawn at any time within the year, and yet recovered his services for the first six months. So in Artcher v. Zeh, 5 Hill, 200; and it seems also, that whenever the time of the duration of the contract is to depend on the contingency of life, the contract need not be written : Wells v. Horton, 4 Bing. (13 E. C. L. R.) 40 Thompson v. Gordon, 3 Strob. 197; Bull v. McCrea, 8 B. Mon. 422; as, for instance, a promise not to carry on the business of a livery-stable keeper, because the death of the contracting party might happen within the year: Lyos v. King, 11 Metc. 411; a promise to be performed on the death of the promisor: Wells v. Horton, 4 Bing. (13 E. C. L. R.) 40; Thompson v. Gordon, 3 Strob. 197, etc.; because the death of the promising party might occur instantaneously. The student will find these and many other cases classified in the American note to Peter v. Compton, 1 Smith's L. C. 614, 8th Am. ed.-R.
If by its terms or by reasonable construction, a contract not in writing can be fully performed within a year, although it can be done only by the occurrence of some improbable event, as the death of a person referred to, it is not within the statute. So if it can be performed on one side within a year: Blanding v. Sargent, 33 N. H. 239; Wiggins v. Keizer, 6 Ind. 252; Soggins v.. Heard, 31 Miss. 426; Suggett v. Cason, 26 Mo. 221; Burney v. Ball, 24 Ga. 505; Sherman v. Champlain Co., 31 Vt. 162; Wilson v. Ray, 13 Ind. 1; Dresser v. Dresser, 35 Barb. 573; Hill v. Jamieson, 16 Ind. 125. Payment or performance of the consideration of an agreement, not to be performed within the year, never takes it out of the statute: Pierce v. Paine, 28 Vt. 34; see Boutwell v. O'Keefe, 32 Barb. 434. An agreement to employ a person for the term of one year, to commence in futuro, is void: Amburger v. Marvin, 4 E. D. Sm. 393; Kelly v. Terrel, 26 Ga. 551. An agreement by an infant to work seven years for his board is not within the statute : Wilhelm v. Hardman, 13 Md. 140. A parol agreement not to carry on a trade in the village of B., is not within the statute, as it may be wholly performed within one year by the death in a case where the defendant, in a letter signed by him, proposed to the plaintiff that she should assign to the defendant, in trust for an institution managed by him, a patent which she had obtained for making toys, such patent to be used by the institution, the plaintiff' to have 5 per cent. on the profits, and the defendant to provide for the next payment in respect of the patent; and if the payments made should not equal a certain sum in the first and subsequent years, the plaintiff to have the right to reclaim the patent, and this proposal was accepted by the plaintiff by word of mouth; it was held that the contract did not require to be in writing under the 4th section of the Statute of Frauds *inas-much as all that was to be done by the plaintiff as the consideration of defendant's promise was capable of being done within a year, and it did not appear that any part of it was to be postponed until after a year (k).
Where a servant has entered on his duties under a verbal contract for yearly service, coming within the 4th section, and is dismissed within the year for no fault of his own, he can, it seems, recover the value of the services rendered by him up to the time of his dismissal (/).
I have now gone through the five cases to which the 4th section of the Statute of Frauds applies, and in which it requires a written memorandum of the contract. There are one or two cases of very considerable importance in practice on which I shall briefly observe of either party: Richardson v. Pierce, 7 B. I. 330; Worthy v. Jones, 11 Gray, 168.-s.
(k) Smith v. Neale, 26 L. J. (C. P.) 143; 2 C. B. (N. S.) (89 E. C. L. R.) 67.
(I) See Snelling v. Lord Huntingfield, 1 Cr. M. & R. 20; and the remarks of Thesiger, L. J., in Britain v. Rossiter, 48 L. J. (Q. B.) 362, 367; 11 Q. B. D. 123, 133.
In the next Lecture, in which a writing is required by the express enactment of the legislature. Having mentioned them, I shall say something of the consideration upon which a simple contract may be grounded, and which is, as you are aware, an essential part of every such contract; and then, having finished the remarks I had to make on Simple Contracts exclusively, shall resume the *consideration of the general law of contracts, and shall speak of the competency or incompetency of the contracting parties, and of remedies by which, in case of breach of contract, their performance is to be enforced.