Mann, 85 111. 222; Duff v. Snider, 54 Miss. 245; Thomas v. Hammond, 47 Tex. 42. So it was held that an agreement to labor for a year was not within the statute; for the plaintiff might tender his services immediately. Russell v. Slade, 12 Conn. 455; and see Tatterson v. Suffolk Manuf. Co., 106 Mass. 56; Dougherty r. Rosenberg, 62 Cal. 32; Lorimer v. Kelley, 10 Kans. 228; Osment v. McElrath, 68 Cal. 466; Raynor v. Drew, 72 Cal. 307; Niagara Ins. Co. v. Greene, 77 Ind. 590; Sines v. Superintendents of Poor, 58 Mich. 503; Gonzales v. Chartier, 63 Texas 36; Roberts v. Summit Park Co., 72 Hun (N. Y.) 458.

1 Where a contract as originally made is to be performed within a year, a subsequent oral extension for a period less than a year is binding. Donovan v. Richmond, 61 Mich. 467.

2 Upon these two points it is unnecessary to collate cases. They will be found stated in almost any one of those cited. Ante, §§ 275-277.

3 Roberts v. Rockbottom Co., 7 Met. (Mass.) 46: Lockwood v. Barnes, 3 Hill (N. Y) 128; Clark v. Pendleton, 20 Conn. 495; Randall v. Turner, 17 Ohio St. 262. The suggestion of a different doctrine by party may have formed upon the probabilities of the case, and always supposing that such expectation has not so entered into their bargain that the disappointment of it would prevent the bargain from being considered executed and performed so as to be binding upon them. The statute, finding them perfectly free to make a certain contract, without a writing, provides simply that if that contract does by its terms, expressed, or, from the situation of the parties, reasonably implied, require more than a year for its performance, they must put it in writing. In other words, it must affirmatively appear from the contract itself and all the circumstances that enter into the interpretation of it, that it cannot in law be performed within the space of a year from the making.1

§ 280. There is a decision of the Supreme Court of New York, however, which it would seem cannot be supported, unless a distinction be adopted as to the nature of the contingency. The parties there orally agreed that one of them should have a colt at a price to be paid on delivery, the colt to be got by his stallion out of the other's mare, and the latter to keep the mare in his possession, and to keep the colt until the ordinary weaning time, or until it was four or six months old; and the court considered that, as the common period of gestation, eleven months, and the common period of weaning, four to six months, would carry the performance of the contract to the fifteenth or seventeenth month from the time of making it, the statute applied.2 But in this case, gestation might be completed and the young weaned within the year, notwithstanding the ordinary course of nature would require some months longer. Or suppose the case of a contract to erect a certain building, which, in the ordinary course of business, could not be erected under two years, or to do something on the completion of a voyage which would ordinarily occupy two years;1 extraordinary exertion in the former case or extraordinary weather in the latter, might bring about within the space of a year the event upon which the obligation was to take effect. It would seem to be pushing the rule, that possibility of performance within the year makes the contract good, to an extreme which sacrifices the spirit of the statute to its letter, to hold that in such cases as these it does not apply. Perhaps it is proper to limit that rule so far as to say that, though the period of the execution of the contract may arrive within a year from the making, yet if that cannot possibly occur in the natural course of events, the parties cannot be supposed to have intended to abide thereby, and the statute applies.1

Redfield, J., in Hinckley v. Southgate, 11 Vt. 428, seems to stand quite unsupported. See, however, the dissenting opinion of Morgan, J., in Dresser v. Dresser, 35 Barb. (N. Y.) 584.

1 Walker v. Johnson, 96 U. S. 424; Lawrence v. Cooke, 56 Me. 187; Sutphen v. Sutphen, 30 Kansas 510; Hinkle v. Fisher, 104 Ind. 84; Durham v. Hiatt, 127 Ind. 514; Warren Chemical Co. v. Holbrook, 118 N. Y. 586; Duffy v. Patten, 74 Me. 396; Sterling Organ Co. v. House, 25 W. Va. 64; Schnltz v. Tatum, 35 Mo. App. 136; Barton v. Cray. 57 Mich 622; Farwell v. Tillson, 76 Me. 227; Kiene v. Shaeffing, 33 Neh 21; Powder River Live Stock Co. v. Lamb, 38 Neb. 339.

2 Lockwood v. Barnes, 3 Hill (N. Y.) 128; Groves v. Cook, 88 Ind. 169.

1 In Clark v. Pendleton, 20 Conn. 495, the declaration alleged that the defendant being about to embark on a whaling voyage, and to be absent from the United States for about the term of eighteen months as was then expected, in consideration that the plaintiff had at his request promised to marry him when thereto requested after his return from said voyage, he, etc., undertook, etc., to marry her, etc., alleging defendant's return after about twenty months' absence, request to marry the plaintiff, and refusal to do so. The Supreme Court held that the defendant's promise was not within the statute. They say: " It is not alleged in any form that it was made with reference to, or that its performance was to depend on, the determination of a voyage which would necessarily occupy that time. It is only alleged that it was expected by the parties that the defendant would be absent for the period of eighteen months. But this expectation, which was only an opinion or belief of the parties, and the mental result of their private thoughts, constituted no part of the agreement itself; nor was it connected with it, so as to explain or give a construction to it, although it naturally would, and probably did, form one of the motives which induced them to make the agreement. ... It is unnecessary for us to determine what would be the effect of proof that the event upon which the performance of a verbal contract depended, could not by possibility take place within a year from the making thereof, when it did not appear from the contract itself that it was not to be performed within that time, because there was no claim in the present case which raised that point." See post, §§ 283, 284.