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.
§ 277. Agreements to refrain altogether from certain acts are also held not to be within the statute; such as an agreement not thereafter to engage in the staging or livery business in a certain town;2 an agreement not thereafter to practise medicine in a certain town;3 an agreement not thereafter to sell or aid in selling musical instruments except to certain parties.4 In all such cases the agreement, from its nature, will be performed when the party dies, and this contingency, though not named by the parties, must be in their contemplation as one which may happen within the year.5
1 Warner v. Texas & Pacific R. R. Co., 4 U. S. Cir. Ct. App. 673; 54 Fed. Rep. 922. See also Fallon v. Chronicle Publishing Co., 1 Mc-Arthur 485.
2 Lyon v. King, 11 Metc. (Mass.) 411. Observe the distinction between this, and cases like King v. Welcome, 5 Gray (Mass.) 41, where the time is fixed by the parties. See §§ 281, 282, post.
3 Blanding v. Sargent, 33 N. H. 239; Blanchard v. Weeks, 34 Vt. 589; Welz v. Rhodius, 87 Iud. 1.
4 Hill v. Jamieson, 16 Ind. 125. See also Richardson v. Pierce, 7 R. I. 330; Worthy v. Jones, 11 Gray (Mass.) 168.
5 The case of Davey v. Shannon, decided in the Exchequer Division in 1879 (4 Exch. Div. 81), is against the rule stated in the text.. As treated in argument, and by the court, the agreement in question was that the defendant should not thereafter practise a certain trade in a certain neighborhood. "Prima facie," said the court, Hawkins, J., "it was not to be performed within a year." And starting with this assumption, he applied to the case the acknowledged rule that a contract which by its terms is not to be performed within a year, is not the less within the statute, because it is made defeasible by a contingency, e. g., the party's
§ 278. Although a period of more than a year be expressly allowed for the performance of the agreement, yet if the agreement may be substantially and reasonably performed, according to the fair understanding and intention of the parties, within a year, the statute will not apply.1
§ 278 a. An agreement, in general terms, to do a particular act, no time being specified, and the act being such as may be performed by the party promising, under the contract, within a year, is also saved from the operation of the statute, on the principles before stated.2 death, which may occur within that period; and gave judgment for the defendant. The proposition that an agreement to be performed so long as the promisor lives is prima facie not to be performed within a year, can hardly stand. None of the cases which are cited in support of this judgment presented such a question; but they all turned upon other considerations which form the subject of discussion in different parts of this chapter. The statement of claim alleged that, "In or about 1866, the defendant entered into the employment of the plaintiff as a foreman tailor for a term of three years, on the terms, amongst others, that if he should leave the plaintiff's employment, he should not engage in the service of any one carrying on, or himself carry on, the business of a tailor or outfitter, within five miles of Devonport. The defendant, on the expiration of the said period of three years, continued in the employment of the plaintiff on the like terms, except as to the period of employment, until the end of October, 1877." The true view of the defendant's agreement would seem to be, that he was to refrain from taking employment with others for at least three years. If this view were taken, the decision would be right. Since the foregoing was written the authority of Davey v. Shannon has been repudiated by the Court of Appeal in McGregor v. McGregor, in L. R. 21 Q. B. D. 424. Post, § 282 b.
1 Walker v. Johnson, 96 U. S. 424; Southwell v. Beezley, 5 Oreg. 143; Hodges v. Richmond Manuf. Co., 9 R. I. 482; Paris v. Strong, 51 Ind. 339; Plimpton v. Curtiss, 15 Wend. (N Y.) 336; Kent v. Kent, 18 Pick. (Mass.) 569; Artcher v. Zeh, 5 Hill (N. Y.) 200; Lapham v. Whipple, 8 Mete. (Mass.) 59; Linscott v. Mclntire, 15 Me. 201; Smith v. Westall, 1 Ld. Raym. 316; Saunders v. Kastenbine, 6 B. Mon. (Ky.) 17; Jones v. Pouch, 41 Ohio St. 146; Bartlett v. Mystic River Corporation, 151 Mass. 433; Sarles v. Sharlow, 5 Dak. 100.
2 McPherson v. Cox, 96 U. S. 404; Adams v. Adams, 26 Ala. 272; Soggins v. Heard, 31 Miss. 426; Suggett v. Cason, 26 Mo. 221; Rogers v. Brightman, 10 Wise. 55; Marley v Noblett, 42 Ind. 85; Van Woert v. Albany & Susquehanna R. R. Co., 67 N. Y. 538; Hedges v. Strong, 3 Oreg. 18; Blair Town Lot Co. v. Walker, 39 Iowa 406; Blackburn v.
§ 279. It is very clear that it is immaterial, upon the question of the application of the statute to a contract, that it has or has not been performed within the year.1 Otherwise the obligations of parties might be avoided by any accident which postponed their complete execution beyond the statutory period, though made in good faith with the expectation and intention that they should be executed within it. And still farther, the cases show that where the happening of a contingency may work a satisfaction or execution of the promise, the mere circumstance that it was not likely to occur within the year will not bring the case within the statute. It would certainly add much embarrassment to the duties of courts in construing the statute if they should be obliged to entertain questions of probabilities and degrees of probability in such cases. So long as there is nothing in the agreement itself to show that the parties contemplated, and contracted with reference to its happening after the expiration of the year, it is reasonable to suppose that either party was to have the benefit of the uncertainty as the fact might result.2 And, to advance still another step, it can make no difference at what time the contingency was expected to occur;3 understanding by expectation, the judgment either