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.
1 Hill v. Hooper, 1 Gray (Mass.) 131. The case of Peters v. Westbor-ough, 19 Pick. (Mass.) 364, so far as it is contra, appears to be not law. In Farrington v. Donohoe, Irish Rep. 1 C. L. 679, the agreement was to support a child "until she was able to support herself," and was held to be within the statute, because it "contemplated an event not to be performed within a year, though, of course, the agreement would have been determined by the collateral event - the death of the child - which might have happened within the year." And see Murphy v. O'Sullivan, 18 Irish Jurist, 111: Goodrich v. Johnson, 66 Ind. 259. But see Wooldridge v. Stern, 42 Fed. Rep. 311.
2 Doyle v. Dixon, 97 Mass. 208. See also Perkins v. Clay, 54 N. H. 518.
3 Gottschalk v. Witter, 25 Ohio St. 76; Self v. Cordell, 45 Mo. 345; and see Davey v. Shannon, 4 Exch. Div. 81.
1 See §§ 277, 277 a, supra.
2 Supra, §§ 279, 280; and see Davey v. Shannon, 4 Exch. Div. 85.
§ 283. In cases where no question of the death of the promisor or some other party, or the perishing of the subject-matter of the contract is involved, and the only question is whether, by the true construction of the language used by the parties, a greater term than one year is required for the due and perfect performance of the agreement, little or no difficulty will be found. An agreement, for instance, made in January of one year to pay a sum of money in March of the next year, is not capable of execution within the first year. A tender before the March specified would not be good; the promisee would not be bound to accept payment any sooner.1 So an agreement made by one who sold a patent-right, that he would refund the price paid if the purchaser did not in three years realize the amount of the profits, is manifestly within the statute. The promisee might have realized the amount in less than a year, whereby the promisor would have been discharged from his liability, but his promise would not take effect, and he be liable to an action for the non-performance, until the expiration of the three years.2 So with a contract to deliver a crop of hemp raised the present year, and that of two succeeding years.3 So with a mortgagee's promise, at the time of entering to foreclose, that if he shall sell the place he will pay the mortgagor all he receives beyond the mortgage debt; as he cannot sell in less than three years the statute applies.1 An agreement for the payment of money by instalments at less than a year each, the entire payment to occupy more than a year, is within the statute.2 An agreement to pay a certain sum of money per annum is manifestly within the statute;3 but if the payments are to be in instalments at less than a year, and no term be fixed for the completion of the payments, the statute does not apply.4
1 Lower v. Venters, 7 Cowen (N. Y) 263; and see Cowles v. Warner, 22 Minn. 449.
2 Lapham v. Whipple, 8 Met. (Mass.) 59. See also Curtis v. Sage, 35 111. 22. But if the agreement be to pay over money as soon as received, and it is not due for two years, but may be received in less than one, the statute applies. Curtis v. Sage, supra.
3 Holloway v. Hampton, 4 B. Mon. (Ky.) 415. See also Tuttle p. Swett, 31 Me. 555; Lawrence v. Woods, 4 Bosw. (N. Y.) 354; Bartlett v. Wheeler, 44 Barb. (N. Y.) 162.
§ 284. It need hardly be remarked that an oral agreement to put in writing a contract which will require more than a year to perforin, is within the statute, and no action will lie for its non-performance.5
§ 285. The next question is, What is that performance within the space of a year from the making, the possibility of which removes a contract from the reach of this provision of the statute. One thing is well settled and admitted in all cases; that the contract must be capable of entire and complete execution within the year. It is not enough that it may be commenced, or ever so nearly completed in that space of time.6 In certain kinds of contracts, however, as where a series of things is to be done, occupying in the whole more than a year, but each item, as it is performed, drawing with it a separate liability therefor, the statute does not prevent an action upon such items as are performed within the year, to recover the stipulated pro rata compensation. Thus it was held by the Court of Common Pleas, that upon a contract for twenty-four numbers of a periodical work, to be delivered monthly at a guinea a number, the plaintiff might sue for the numbers actually delivered, although the contract was not reduced to writing. And they distinguished this case (as one of a divisible contract) from Boydell v. Drummond, on the ground that there the defendant had paid for all the numbers he had actually received, and the action was upon that part which remained executory.1 But, as may be inferred from the reasoning of the judges in the latter case, it is not true that because certain items of a divisible contract may be performed within the year, an action may be sustained for a breach of those items, thus severing what the contract made continuous.2
1 Frary v. Sterling, 99 Mass. 461.
2 Hill v. Hooper, 1 Gray (Mass.) 131. See also Tiernan v Granger, 65 111. 851, and post, § 285.
3 Giraud v. Richmond, 2 C. B. 835; Drummond v, Burrell, 13 Wend. (N. Y.) 307; Parks v. Francis, 50 Vt. 626.
4 Moore v. Fox, 10 Johns. (N. Y.) 244, referred to and explained in Drummond v. Burrell, supra. See Knowlman v. Bluett, supra, § 276 a, and post, § 285, as to cases in which some items of an agreement are to he performed within a year, and are separable from the rest. See also Sprague v. Foster, 48 11l. App. 140.
5 Amburger v. Marvin, 4 E. D. Smith (N. Y.) 393; and see § 177, supra.
6 Groves v. Cook, 88 Ind 169. But see Brown v. Throop. 59 Conn. 596.
§ 286. A rule has been announced within a few years, in England, which requires very careful examination; namely, that if all that is to be performed on one side is to be performed within a year from the making of the contract, the statute does not apply to it, and an action will lie for the non-performance of the other stipulations. The first intimation of this doctrine is found in Boydell v. Drummond, where the counsel for the plaintiff insisted that by accepting the earlier numbers of the Shakespeare the defendant had taken the case out of the Statute of Frauds by part execution, and compared it to selling and delivering goods, on thirteen months' credit, without writing, in which case, if no evidence could be given of the terms of payment, as part of the contract, the vendor would not be bound by the stipulated price, and the jury could only give a verdict for the value of the goods; but Lord Elleuborough said that there the delivery of the goods would be a complete execution on one part within the year, and the question of consideration only would be reserved for the future. Nothing is given in the report to explain any further his Lordship's remarks.1 And afterwards, in Bracegirdle v. Heald, which was a case of a contract for a year's service to commence at a future day, and therefore clearly within the statute, Mr. Justice Abbott took occasion to remark that when all that was to be done on one side was to be done within the year, as in the case of goods to be delivered in six months and paid for in eighteen months, the contract would not be within the statute.2