3 Wells v. Horton, 4 Bing. 40.

4 Thompson v. Gordon, 3 Strobh. (S. C) Law, 196; King v. Hanna, 9 B. Mon. (Ky.) 369; Frost v. Tarr, 53 Ind. 390; Riddle v. Backus, 38 Iowa, 81; Sword v. Keith, 31 Mich. 247.

5 Derrick v. Brown, 66 Ala. 112; Heflin v. Milton, 69 Ala. 354.

6 Artcher v. Zeh, 5 Hill (N. Y.) 200.

7 Clark v. Pendleton, 20 Conn. 495. See post, § 280.

8 McConahey v. Griffey, 82 Iowa 564.

9 Blake v. Cole, 22 Pick. (Mass.) 97.

10 Walker v. Metropolitan Ins. Co., 56 Me. 371; Wiebeler v. Milwaukee Ins. Co., 30 Minn. 464.

11 Hutchinson v. Hutchinson, 46 Me. 154; Atchison, T. & S. F. R. R. v. English, 38 Kans. 110. In Berry v. Doremus, 30 N. J. L. 399. this rule seems to have been overlooked. See Tolley v. Greene, 2 Sandf.

§ 276 a. Agreements to continue to do something for an indefinite period, which may be terminated at any time by either party;8 or which may be terminated by such a change

(N. Y.) Ch. 91, where the Assistant Vice-Chancellor intimates a distinction on this point between a contingency consisting in the happening of an event which neither party nor both together can hasten or retard, and the happening of an event which rests upon human effort and volition, inclining to the opinion that in the former case the statute applies. But the distinction, as the cases show, is entirely without foundation in authority, and the same judge, in his dictum in Rhodes v. Rhodes, 3 Sandf. Ch. 285, seems to have disregarded it. See it criticised in Blan-chard v. Weeks, 34 Vt. 589.

1 Gilbert v. Sykes, 16 East 150; Burney v. Ball, 24 Ga. 505; Wiggins v. Keizer, 6 Ind. 252.

2 Updike v. Ten Broeck, 32 N. J. L. 105, 116; Kent v. Kent, 62 N. Y. 560, affirming the doctrine of Dresser v. Dresser, 35 Barb. 573, reversed on other grounds by the Court of Appeals. Pennsylvania Co. v. Dolan, 6 Ind. App. Ct. 109.

3 Howard v. Burgen, 4 Dana (Ky.) 137. And see Alderman v. Chester, 34 Ga. 152; Bull v. McCrea, 8 B. Mon. (Ky.) 422; Heath v. Heath, 31 Wisc. 223; Harper v. Harper, 57 Ind. 347; Murphy v. O'Sul-livan, 18 Ir. Jur. Ill; Carr v. McCarthy, 70 Mich. 258.

4 Ellicott v. Turner, 4 Md. 476. In Wilhelm v. Hardman, 13 Md. 140, which followed the authority of the preceding case, the circumstances would seem to show a period of time fixed by the parties, which should have brought the case within the statute. See Abbott v. Inskip, 29 Ohio St. 59.

5 Stowers v. Hollis, 83 Ky. 544.

8 Houghton v. Houghton, 14 Ind. 505.

7 White v. Hanchett, 21 Wisc. 415; Blake v. Voight, 134 N. Y. 69; Railroad Co. v. Staub, 7 B. J. Lea (Tenn.) 397; Smith v. Conlin, 19 Hun (N. Y.) 234; Sweet v. Desha Lumber Co., 56 Ark. 629. Quaere if the application of this rule was not sprained in Railway Co. v. Whitley, 54 Ark. 199.

8 Esty v. Aldrich, 46 N. H. 127; Sherman v. Champlain Trans. Co., 31 Vt. 162; Baptist Ch. v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Knowlin the circumstances of the parties as will make it unreasonable or unnecessary that they should be farther bound, the contingency of such change of circumstances being implied in the nature of the contract, - are not within the statute. The latter point may be illustrated by a case in New York, where the defence to an action for injury to the plaintiff's cattle by running over them with railway cars, was that the plaintiff had verbally agreed to build and maintain a fence along the railroad opposite his land, whence his cattle escaped on to the track at the time of the injury. This agreement was held not to require a writing under the Statute of Frauds; but upon doubtful ground. It would have been properly so held upon the ground that the duration of the plaintiff's promise to maintain the fence was obviously limited (though no words said to that effect) by the duration of the circumstances of the parties which led to the making of it. If the road should cease to be used by the promisee or its assigns for railway purposes, it is unreasonable to suppose that the fence was still to be maintained, the reason for maintaining it no longer existing; and this might well happen within the space of a year, consistently with the understanding and rights of the parties.1 man v. Bluett, L. R. 9 Exch. 1, 307; Greene v. Harris, 9 R. I. 401; Blakeney v. Goode, 30 Ohio St. 350; Prout v. Webb, 87 Ala. 593; Walker v. Railroad Co., 26 S. C. 80.

1 Talmadge v. Rensselaer & Saratoga R. R. Co., 13 Barb. (N. Y ) 493. The court took the ground, as sufficient for the decision of the case, that as the contract was, by present payment of the consideration, executed completely on one side, the statute did not apply. (Upon this point see post. § 286.) It seems that the case can hardly be sustained except upon the ground stated in the text. In Pitkin v. Long Island R. R. Co., 2 Barb. Ch. 221, is was held that a mere executory agreement between complainant and defendant that the latter should establish a turn-out track near his land, and stop there, as a permanent arrangement, was void. But here the contract went to create a negative easement in the property of the railroad company, a right which could not pass by parol, and so the case is explained in Talmadge v. Rensselaer & Saratoga R. R. Co., supra. It must be said that the cases of Osborne v. Kimball, 41 Kans. 187 and Baynes v. Chastain, 68 Ind. 376 (cases of mutual contracts to maintain prices seem to be against the view taken in the text.

§ 276 b. But in a case where a railway company verbally agreed to lay a switch for the use of a saw-mill owner, and to maintain the same as long as he should need it, and it was made to appear as matter of fact that it was expected and understood between the parties that he would need it for many years, the United States Circuit Court of Appeals for the Fifth Circuit held that the Statute of Frauds barred action by the mill-owner against the railway company for breach of the agreement. The court say, "We think it appears affirmatively that the agreement was not to be performed within the space of one year, and that it was void." 1