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.
§ 281. Where the manifest intent and understanding of the parties, as gathered from the words used and the circumstances existing at the time, are that the contract shall not be executed within the year, the mere fact that it is possible that the thing to be done may be done within the year, will not prevent the statute from applying. Physical possibility is not what is meant when it is said that if the verbal contract may be performed within a year it is binding. Or, to speak exactly, it is not enough that the thing stipulated may be accomplished in a less time; but such an accomplishment must be an execution of the contract according to the understanding of the parties.2
§ 281 a. Such was the principle of Boydell v. Drummond, decided in the Queen's Bench, in 1809. The Boydells had proposed to publish by subscription a series of large prints illustrative of scenes from Shakespeare. There were to be eighteen numbers of the work, each number to contain four prints, and the price to be three guineas the number. The defendant became a subscriber. A prospectus issued by the Boydells, with reference to which the parties appeared to have contracted, set forth that "one number at least should be published annually, and the proprietors were confident they should be enabled to produce two numbers within the course of every year." The defendant having received two numbers and having refused to take any more, this action was brought against him to recover the price of the remaining numbers, the Boydells having duly laid them aside for him as they came out. The judges were unanimous in holding that the statute applied to the defendant's engagement. Lord Ellenborough said: "The whole scope of the undertaking shows that it was not to be performed within a year, and if, contrary to all physical probability, it could have been performed within that time, yet the whole work could not have been obtruded upon the subscribers at once, so as to have entitled the publishers to demand payment of the whole subscription from them within the year."1 Grose, J., said that, considering the nature of the work and of the prospectus, it was "impossible to say that the parties contemplated that the work was to be performed within a year." And by the word contemplated, it is evident from the whole case that he meant understood as matter of contract. The Supreme Court of Maine, in a case where the contract was to clear eleven acres of land in three years from date, one acre to be seeded down the present spring, one acre the next spring, and one acre the spring following, the compensation to be all the proceeds of the land for these years, except the two acres first seeded down, also held upon a similar view that the statute applied. They say: "It is urged that the defendant might have cleared up the land and seeded it down in one year, and thereby performed his contract. . . . We are not to inquire what, by possibility, the defendant might have done by way of fulfilling his contract. We must look to the contract itself, and see what he was bound to do, and what, according to the terms of the contract, it was the understanding that he should do. Was it the understanding and intention of the parties that the contract might be performed within one year? If not, the case is clearly with the defendant." 2
1 Gault v. Brown, 48 N. H. 183, is a case on the border line. The contract was for the sale of all the cord-wood on a certain lot. to be delivered, as far as possible, that winter, and the rest the next. It was held not within the statute, upon the ground that there might possibly be full performance within the year; but the terms in which the parties put their agreement seem to show that they did not contemplate any such possibility, but. on the contrary, believed that in the natural course of events a part of the performance would necessarily be deferred to the second year. And see Sutcliffe v. Atlantic Mills, 13 R. I. 480.
2 Farwell v. Tillson, 78 Me. 227.
1 Boydell v. Drummond. 11 East 155. See ante, §§ 279, 280.
2 Herrin v. Butters, 20 Me. 122; Saunders v. Kastenbine, 6 B. Mon. (Ky.) 17; Peters v. Westborough, 19 Pick. (Mass.) 364; Linscott v. Mcln-tire, 15 Me. 201; Hinckley v. Southgate, 11 Vt. 428; Sines v. Superintendents of Poor, 58 Mich. 503; Fallon v. Chronicle Publishing Co., 1 McArthur (D. of C.) 485; Kellogg v. Clark, 23 Hun (N. Y.) 393. See
§ 282. We have thus far noticed a variety of cases, in which the contract contained no express provision that the thing to be done should be done for more than one year or after the expiration of one year. We now come to the cases of agreements which are in terms to do a thing during or after a definite period of time, more than one year from the making of the agreement. To such cases the statute generally applies; and this may be so, notwithstanding that the agreement may consistently with its terms cease to be operative in one year or less.1 Thus, a contract of hiring for more than a year is within the statute, although it be stipulated that either party may withdraw from the contract before the expiration of a year.2 And a contract for the use of a patented cut-off on a certain steamboat for a definite number of years is within the statute, although the parties may recognize the possibility of the destruction of the vessel during that time.3 In such cases as those just cited, it cannot be said that the agreement would be fully performed when one party withdrew from the contract of hiring, or when the vessel was lost or destroyed; wo should rather say, that in such event, the performance of the agreement according to its terms would be frustrated or become impossible.
Somerby v. Buntin, 118 Mass. 279. See also Eley v. Positive Life Assurance Co., 1 Ex. Div. 20, where an agreement to act as solicitor of the company was held to be within the statute the fair inference from the circumstances being that the parties contemplated that the performance of the contract should occupy more than a year. But the judges in their opinions made use of expressions which certainly seem to be at variance with the doctrines which before had been generally accepted; for they say that inasmuch as the employment of the plaintiff might continue during his life, therefore the statute would apply. And this view, which did not, it is to be noticed, receive the sanction of the Court of Appeal (vide 1 Exch. Div. 88), was followed by the decision in Davey v. Shannon, which is criticised, supra, § 277, note. What contract was made is, if controverted, a question for the jury. Tatterson v. Suffolk Manuf. Co., 106 Mass. 56.