1 Observe the difference between this rule, and that stated in § 278, where the agreement allowed a certain time, more than a year, for the doing of the thing promised, but did not require that its doing should continue through that time.

2 Dobson v. Collis, 1 Hurlst. & N. 81; Meyer v. Roberts, 46 Ark. 80. But see Smith v. Conlin, 19 Hun (N. Y.) 234.

3 Packet Co. v. Sickels, 5 Wall. (U. S.) 580; and see Birch v. Liverpool, 9 Barn. & C. 392; Acraman, ex parte, 7 L. T. n. s. 84; Van Schoyck v. Backus, 9 Hun (N. Y.) 68; Deaton v. Tennessee Coal and Railroad Co., 12 Heisk. (Tenn.) 650; Green v. Pennsylvania Steel Co., 75 Md 109.

§ 282 a. Where the agreement is in terms to do a thing during or after the space of one year, and is personal in its nature, not binding the promisor's representatives, shall his death, necessarily terminating all enjoyment of the contract on either side, and being a contingency which the parties of course contemplated, be regarded as working a performance of his agreement, or as frustrating and rendering impossible his performance of it? Is such a contract, subject to such a contingency, within or without the Statute of Frauds? If it could be regarded as an open question, it might present much difficulty. On the one hand, it may be argued that it cannot matter for how long a time the promise was expressed to run, if all obligation cease when the promisor dies; that as to all the time after his death, the promise is a promise only in name; that it is in substance a promise to do a thing for a term of years, if the promisor live, or in other words, to do it for his life, not to exceed that term of years. But the result of this argument is to force upon the Statute of Frauds an absolute limitation to contracts which do not descend and bind the representative; a limitation which seems to be neither commended by considerations of the policy of the statute, nor justified by any judicial recognition. The question, however, can hardly be regarded as an open one. There are numerous cases in which agreements to do a thing during or after a definite term of time longer than one year from the making, have been held to be covered by the statute, notwithstanding that the death of the promisor, the agreement being of a personal nature, would render further performance impossible;1 or where the impossibility of carrying on performance of the contract to the full end of the stipulated time arises upon the death of another than the promisor.1

1 Shute v. Dorr, 5 Wend. (N. Y.) 201; Roberts v. Tucker, 3 Exch. 632; Shumate v. Farlow, 125 Ind. 359. See Wahl v. Barnum, 116 N. Y. 87.

§ 282 b. A distinction has been made where the agreement is to refrain from doing a thing for a definite term longer than one year. In the case of Doyle v. Dixon, in Massachusetts,2 the action was upon an oral agreement that the defendant would not engage in a certain trade at a certain place for the term of five years, and the agreement was held not to be within the statute, because it was fully performed if the promisor performed it as long as he lived; the court distinguishing between an agreement to do a thing and an agreement not to do a thing, for a certain definite time, more than a year. On the other hand, the courts of Ohio and Missouri, disregarding this distinction, have held contracts not to engage in a particular business for a period longer than a year, to be within the Statute of Frauds.3 The question is not without difficulty, but upon the whole, the weight of reasoning would seem to be opposed to the judgment of the Supreme Court of Massachusetts. They treat the agreement as not differing substantially from an agreement that the party should never in future engage in a certain business, saying, "whether a man agrees not to do a thing for his life, or never to do it, or only not to do it for a certain number of years, it is in either form an agreement by which he does not promise that anything shall be done after his death, and the performance of which is therefore completed with his life." This seems to go the length of saying, in substance, that if the agreement does not bind the representatives, the death of the promisor completes his performance of his agreement, whatever the length of time contemplated and expressly stipulated by the parties for its performance; and this, as has been shown, is doubtful upon consideration of the policy of the statute, and opposed to the current of authority. The cases of an agreement to keep out of a certain business for a definite term of years, and an agreement to keep out of it altogether, are not obviously the same in substance and effect, for the purposes of the Statute of Frauds. The agreement to keep out of the business altogether necessarily implies that the promisor's undertaking is completely performed if he fulfils it until his death; nothing more can be within the contemplation of the parties; that, neither more nor less, is exactly what they stipulate for.1 But if the agreement be to keep out of the business for a definite term of years, it is certain upon the face of it that the parties contemplated that the promisor would live for that term of years, and that the conditions of their bargain in other respects were regulated in that view. The fact of his death occurring within the first year will render the contract as to the remainder of the term useless to the other party, and will render its further performance by the promisor impossible; but, as we have seen, an agreement within the statute is not under such circumstances held to be performed.2 The distinction between an agreement to do a thing and an agreement not to do a thing, for a definite term of years, would seem to be, barely stated, quite unsubstantial. In each case the promisor undertakes that during the stipulated term of years he will submit to and observe a certain obligation, which the agreement imposes upon him; and in each case, and in the same way in each case, his death only makes the performance of that obligation for the residue of the stipulated time impossible.