7 Duff v. Snider, 54 Miss. 245.

and Ohio.1 In New York, on the other hand, the Supreme Court have expressed very strong dissatisfaction with it, and with great force of reasoning.2

1 Reinheimer v. Carter, 31 Ohio St. 579.

2 Broadwell v. Getman, 2 Denio 87, the criticism upon which in Tal-madge v. Rensselaer & Saratoga R. R. Co., 13 Barb. 493, seems to be quite unnecessary, the latter case being rightly decided upon another point. (Ante, § 278.) See also Bartlett v. Wheeler, 44 Barb. 162; Dodge v. Crandall, 30 N. Y. 294; Weir v. Hill, 2 Lans. 282.

The Supreme Court of Vermout, in a case decided in 1855, but not published till after the first edition of this treatise was in print, have come to a conclusion directly opposite to the views expressed in Douellan v. Read, and upon precisely the grounds upon which Douellan v. Read is criticised in the text. The respectability of the tribunal, and the marked ability of the opinion of the court, delivered by Chief Justice Redfield, justify, upon a point so important, the transcription here of the entire opinion, in which the facts sufficiently appear, and which was as follows: -

"This is an action of assumpsit upon a promise to pay the plaintiff the money paid out, and interest, if he would subscribe for fifty shares in the stock of the Vermont Central Railroad Company, and pay the amount of them, as the assessments fell due, which was within one year, if, after one year, the plaintiff should elect not to keep them, but to transfer them to the defendant. And if the plaintiff did then elect to keep them, and they were above par, he was to pay the defendant half the advance. It is claimed, on the part of the defendant, that this is a contract within the Statute of Frauds, as not to be performed within the year from its date, and not being in writing.

"And it is replied to this, that, as it was to be performed, upon one side, within the year, that takes it out of the operation of this portion of the statute, and the case of Donellan v. Read, 3 Barn. & Ad. 889, 23 Eng. C. L. R. 215, is relied upon. There can be no doubt such a doctrine is declared in this case; but it is severely questioned by Smith, in his Leading Cases, 1 vol. p. 145, et seq.; and in the American note it is said, that it has been generally held, in this country, 'that it [the statute] applies in all cases where the obligation or duty sought to be enforced, could not have been fulfilled within the year, and that an oral promise for the payment of money, or the performance of any other act, at a greater distance of time than one year, is consequently invalid, whether made upon an executed or executory consideration,' citing Cabot v. Haskins, 3 Pick. 83; Lockwood v. Barnes, 3 Hill 128; Boardwell v. Getman, 2 Denio 87.

"And the chief difference between the case of Donellan v. Read and the other cases is, that in the former case it is laid down that if one party is to perform and does perform all of his part of the contract, that takes the case out of the statute; and in the American cases cited, and in one

§ 290. It may well be doubted, indeed, whether this doctrine would ever have been accepted in England, if the queslate English case, Souch v. Strawbridge, 2 C. B. 808, by Tindal, C. J., it is said that to entitle the party to recover on his part-performance within the year, when the other party was not bound to perform within the year, it must appear that the performance, on the part of the plaintiff, was accepted on the other side, or that it went to the benefit of the other side. And just here it seems to us comes the proper distinction.

"If the contract has been performed on one side, in such a manner that the performance goes to the benefit of the other party, whether this was done within the year or not, it undoubtedly lays the foundation of a recovery against the party benefited by such performance. But when the contract, on the part of this party, was not to be performed within one year from the time it was made, the recovery is not upon the contract, but upon the quantum meruit, or valebat, or upon money counts. It is a recovery back of the consideration of a contract upon which no action will lie, and which has been repudiated by the other party.

"And in the present case, if the plaintiff could be treated as the mere agent of the defendant, in making this subscription and payment of money and the stock as being the defendant's stock, standing in the name of the plaintiff, there would certainly be no difficulty in the plaintiff recovering the money and interest. And this is the view taken of the plaintiff's case by the learned counsel on his behalf, and it is the only ground upon which it seems to us the action can be maintained, consistently with a fair and reasonable construction of the statute. For the statute is explicit, that no action shall be maintained upon any agreement not to be performed within the year. It is that portion of the agreement, or the contract sued upon, which comes within the statute, by not being to be performed within the year, and not that portion of the agreement which constitutes the consideration of the promise sued upon. It will make no difference in regard to recovering the price of the consideration, whether it is paid down, or paid within the year, or after the expiration of the year; or whether it is agreed to be paid at one time or another. If it has been paid, so as to go for the benefit of the other party, at any time, and he does not perform the contract on his part, a recovery may be had, but not upon the special contract, if not to be performed in the year, but for the consideration paid or performed by the plaintiff, and which came to the use of the defendants; and this recovery may be had upon the common counts, ordinarily, it is presumed. See note to 3 Pick. 95, by Judge Perkins, citing Lane p. Shackford, 5 N. H. 133; 1 Fairfield 31, and 1 Pick. 328; 3 Wen. 219, and other cases.