This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
"Judgment reversed and case remanded." Pierce v. Paine's Estate, 28 Vt. 34. See also the remarks of the court upon Donellan v. Read, in Wilson v. Ray, 13 Ind. 1. For another valuable opinion on this point, see Marcy v. Marcy, 9 Allen (Mass.) 8.
1 Bartlett v. Wheeler, 44 Barb. (N. Y.) 162; Emery v. Smith, 46 N. H. 151.
2 Peter v. Compton. Skin. 353.
3 Cabot v. Haskins, 3 Pick. (Mass.) 83, per Parker, C. J.; and see cases referred to in §§ 275, 276, supra.
in equity of special relief on the ground of virtual fraud in the party repudiating the partially executed contract.1 And it is difficult to see why an entire execution by one party of his part of the agreement shall be sufficient to do what is not done by his execution of however large a proportion of that part. Moreover, it is proper to observe, that if the English cases which hold that the memorandum of the agreement must show the consideration, because the word agreement embraces the stipulations of both sides, are right, those English cases can hardly be right which hold that the same word, in the clause just preceding, may embrace only the stipulations of one side.2
§ 290 a. But suppose that what the defendant verbally agreed to do, was to be done within the year; and that what the plaintiff, in consideration thereof, verbally agreed to do, was to be done after the expiration of the year; can the plaintiff maintain his action for damages for the breach of the defendant's agreement, notwithstanding the statute? It has been decided by the Supreme Court of Vermont that he could; assuming the contract to be such that the defendant's breach put an end to it altogether. The case was that the defendant agreed to furnish to the plaintiff a cow at a certain time within a month, and allow him the use of the cow for a year from that time; in consideration whereof the plaintiff agreed, at the end of the year, to buy the cow or pay for the past use of her. The defendant failed to furnish the cow, and the plaintiff sued for damages, and the judgment in his favor was affirmed. The court said: "The plaintiff had done that by way of adequate consideration which, independently of the statute, would have rendered the undertaking of the defendant valid and enforceable against him. Only that which was undertaken by the defendant was to be done within a year. That undertaking is here sued upon. His breach of it at once perfected his liability, and the plaintiff's right of action. Looking to the reason of the law, under the statute, this case stands for the same consideration as any case in which the cause of action should arise from the breach of an agreement that had no relation to the Statute of Frauds. Upon the occurring of such breach, the right of action would be perfected; but the party would be at liberty to delay bringing his suit to the last hour allowed by the Statute of Limitation without affecting the right to maintain the action. The purpose of the Statute of Frauds is to provide for a class of cases in which there cannot be an actionable breach within the specified time. That class embraces only agreements that are not to be performed within a year. Such agreements as may be wholly broken within the year, and thereby give a cause of action for such complete breach, do not fall within either the letter or the reason of the statute. The present case shows the matter in a strong light. The failure of the defendant to furnish the cow or the money, as he agreed to do, made an end of the whole arrangement, and left nothing further, either in act or time, to be done by either party toward the performance of the agreements on either side. The plaintiff thereupon ceased to have anything thereafter to do as matter of obligation to the defendant. The defendant had nothing to do but to pay the damage caused by his breach of agreement, and that breach constituted a perfected cause and right of action in the plaintiff. This being so, the reason of the law under the statute no more had application and force than it would have had if the time for the performance of the agreement on both sides had been limited to a period short of a year from the making thereof, and the defendant had committed the same breach that he did in this case. It is proper further to remark that in all the cases where the agreement has been held to be within the statute, the action was for the breach of that side of the contract that was not to be performed within the year."1
1 Post, Chapter XIX (Verbal Contracts Enforced In Equity).; and see Turnow v. Hochstadter, 7 Hun (N. Y.) 80.
2 Post, §§ 386, et seq.
1 Sheehy v. Adarene, 41 Vt. 541.
§ 291. It need only be added to what has been said upon this clause of the statute, that if the time from the making of the agreement to the end of its performance exceeds a year never so little, the statute applies; for, in the language of Lord Ellenborough, "if we were to hold that a case which extended one minute beyond the time pointed out by the statute did not fall within its prohibition, I do not see where we should stop, for in point of reason an excess of twenty years will equally not be within the act." l And a promise by defendant to work a year for the plaintiff beginning "as soon as he could" has been held to be within the statute.2
§ 291 a. It should be noticed that in some cases the agreement is such that it is performed as soon as made, although the rights growing out of it may continue indefinitely. Thus an agreement that the plaintiff should be taken into partnership with the defendant, was held to have been performed when the plaintiff was admitted, although the partnership business was the prosecution of a building contract extending over more than a year. Such an agreement is manifestly not within the statute.1
1 Bracegirdle v. Heald, 1 Barn. & Ald. 726. And see Nones v. Homer, 2 Hilton (N. Y.) 116; Kelly v. Terrell, 26 Ga. 551; Snelliug v. Hunting-field, 1 Cromp. M. & R. 20; Shipley v. Patton, 21 Ind. 169; Kleeman v. Collins, 9 Bush (Ky.) 460; Hearne v. Chadbourne, 65 Me. 302; Sharp v. Rhiel, 55 Mo. 97; Briar v. Robertson, 19 Mo. App. 66; Cole v. Sing-erly, 60 Md. 348; Sutcliffe v. Atlantic Mills, 13 R. I. 480; Britain v. Ross-iter, L. R. 11 Q B. D. 123. The case of Cawthorne v. Cordrey, 13 C. B. x. s. 406, is not at variance with this doctrine, although the head-note is ambiguous and might mislead. See the opening of the argument of counsel supporting the rule, and remarks of Eyre, C. J. But see Dickson v. Frisbee, 52 Ala. 165.