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.
§ 272. In that clause of the Statute of Frauds which we have now to consider, we perceive still another restriction placed upon the formation of binding contracts by mere verbal understanding. We have seen that all verbal promises to answer for the debt, default, or miscarriage of another, all agreements made upon consideration of marriage, and all contracts for an interest in real estate, must be reduced to writing, in order that any action may be supported upon them or advantage taken of them; and we shall hereafter see that the same is true of certain bargains for goods, wares, and merchandise. All these provisions relate to the subject-matter of the contract. But that which is at present before us relates to the period of the performance of the contract. It manifestly includes them all to a certain extent; that is, a contract which any one of them would render invalid on account of the subject-matter, may be, so to speak, doubly invalid if it is not to be performed within a year.1
1 It is so, for instance, with a contract in consideration of marriage. Paris v. Strong, 51 Ind. 339. Or mutual promises to marry. Ullman v. Meyer, 10 Fed. Rep. 241; Derby v. Phelps, 2 N. H. 515; Lawrence v. Cooke, 56 Me. 193; Nichols v. Weaver, 7 Kans 373. But see Brick v. Gannar, 36 Hun (N. Y.) 52. Or with executory contracts for such short leases as would be valid in esse. See Delano v. Montague, 4 Cush. (Mass.) 42; Roberts v. Tnnnell, 3 T. B Mon. (Ky.) 247; Wilson v. Martin, 1 Denio (N. Y.) 602; Comstock v. Ward, 22 111. 248: Atwood v. Norton, 31 Ga. 507; Strehl v. D'Evers, 66 Til. 77; Beiler v. Devoll, 40 Mo. App. 251; Wolf r. Dozer, 22 Kansas,* 436; Jellett v. Rhode. 43 Minn. 166; Brown v Kayser, 60 Wisc. 1. But as to the law in New York since the last revision of the statutes, see Young v. Dake, 5 N. Y.
§ 273. Postponing the questions, what is the performance of such an agreement, and what the meaning of the limitation as to time, we are first to ascertain the force of the words "to be performed." And on these words much reasoning has been expended. The result seems to be that the statute does not mean to include an agreement which is simply not likely to be performed, nor yet one which is simply not expected to be performed, within the space of a year from the making; but that it means to include any agreement which, by a fair and reasonable interpretation of the terms used by the parties, and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention, within a year from the time of its making.1
§ 274. Suppose that the parties make no stipulation as to time; but the performance of the agreement depends either expressly or by reasonable implication upon the happening of a certain contingency which may occur within the year. In such case it is settled upon authority and reasonable in principle that the statute shall not apply. The agreement may be performed entirely within the year, consistently with the understanding and the rights of the parties. There are many cases which illustrate this rule, and which may be conveniently divided into classes, for the purpose of showing more clearly the extent of the rule.
463, overruling Croswell v. Crane, 7 Barb. 191; also Taggard v. Roosevelt, 2 E. D. Smith (N. Y.) 100. See also Sobey v. Brisbee, 20 Iowa 105; Jones v. Marcy, 49 Towa 188; Fall v. Hazelrigg, 45 Tnd. 576. But see Wolke v. Fleming, 103 Ind. 105; Worley v. Sipe, 111 Tnd. 238. See also Baynes v. Chastain, 68 Tnd. 376; Cole v. Wright, 70 Ind. 179; Whiting v. Ohlert, 52 Mich. 462; Sears v. Smith. 3 Col. 287. But see Stern v. Nysonger, 69 Towa 512 The statement in Taggard v. Roosevelt, supra, that the section in the New York Statute of Frauds applies only to contracts for goods, etc., and not to those for an interest in land, is not supported by other New York cases. See Cayusra R R. Co. v Niles, 13 Hun (N. Y.) 170. Qucere if an agreement to make a lease within one year is within the year clause of the statute, whatever be the length of the term. Becar v. Flues, 64 N. Y. 518. 1 Post, § 279.
§ 275. Cases where the thing promised is in terms to be done when a certain event occurs which may occur within a year; as, for instance, to pay money on the day of the promisor's marriage,1 to leave it by will (the promise, of course, taking effect in the event of the promisor's death),2 or that his executor shall pay it;3 to pay on the death of a third party4 upon the termination of a suit;5 to pay when a sum of money is received by the promisor from a third person, which payment may be made within the year;6 to marry at the end of a voyage, which voyage may be accomplished within the year;7 to marry upon restoration to health;8 to save a party harmless from signing an obligation, which obligation may be forfeited within the year, - are not within the statute.9 Under this head come contracts of insurance, where the promise to pay is conditioned upon the happening of the contingency within the term of the policy.10
§ 276. Cases where the promise is to continue to do something until an implied contingency occur, as, for instance, to pay during the promisee's life;11 to pay during the life of another;1 to work for another during his life;2 to board the promisee during his life;3 to educate a child;4 to support a child; 6 to pay during coverture,6 - are not within the statute, because the contracting parties contemplate that the one whose life is involved may die within the year. And so, of course, whatever else be the contingency, provided it may happen within the year.7
1 Peter v. Compton, Skin. 353.
2 Fenton v. Emblers, 3 Burr. 1278; Ridley v. Ridley, 34 Beav. 478; Izard v. Middleton, 1 Des. (S. C.) Ch. 116; Bell v. Hewitt, 24 Ind. 280; Jilson v. Gilbert, 26 Wisc. 637; Wellington v. Apthorp, 145 Mass. 69. The case of Quackenbush v. Ehle, 5 Barb. (N. Y.) 469, so far as it must be taken to assert the contrary, is clearly opposed to prevailing authority.