stalments of not less than $4 nor more than $8, "unless the plaintiff should find it convenient to pay more" has been held bad.69 So an agreement to indorse renewal notes to a bank until the promisee "was put in position to pay the same by realizing on his other collaterals," the circumstances showing that practically this could not be done within a year; an agreement to support a child, then five years old, until she is able to support herself; 71 a contract made on August 20th for a year's employment to begin as soon as the employee could; when in fact he began to work on August 27th,72 an agreement by a mortgagee who has entered to foreclose that if he sells the property (which under prevailing statutes he could not able time, he was to return the stock to the defendant whereupon the four hundred dollars was to become due, and to be then paid by him to the plaintiff. The court said: "The most that can be claimed, is that it was not likely to be performed within a year; but it was clearly susceptible of performance within that time. The road might have been abandoned within a year, and thus a reasonable time to wait for its completion would have expired. There was, surely, nothing in the contract that fixed the time of performance beyond a year." So in McClanahan v. Otto-Marmet, etc., Co., 74 W. Va. 543, 82 S. E. 752, a contract to cut the timber on certain tracts of land, and deliver it as ties and posts, was held not within the statute, though the employee expected when he undertook the work that it would require six years; the court saying of the contract: "It can only be said that it was not likely to be performed, nor expected by plaintiff to be performed within a year. This was held in Kimmins v. Oldham, 27 W. Va. 258, not to bring an agreement within the statute." A similar case is Reckley v. Zenn, 74 W. Va. 43, 81 S. E. 565. [Cf. Rua v. Bowyer Smokeless Coal Co. (W. Va.), 99 S. E. 213.] If the construction or work in question may 70 reasonably be completed within a year, unquestionably the statute is inapplicable. Sarles v. Sharlow, 5 Dak. 100, 37 N. W. 748; First Presbyterian Church v. Swanson, 100 Ill. App. 39; Ford Lumber Co. v. Cobb, 138 Ky. 174, 127 S. W. 763; Drew v. Wiswall, 183 Mass. 554, 67 N. E. 666; Barton v. Gray, 48 Mich. 164, 12 N. W. 30, 57 Mich. 662, 24 N. W. 638; Thomas v. South Haven, etc., R. Co., 138 Mich. 50, 100 N. W. 1009; Girton v. Daniels, 35 Nev. 438, 129 Pac. 555; Gault v. Brown, 48 N. H. 183, 2 Am. Rep. 210; Plimpton v. Curtiss, 15 Wend. 336; Van Woert v. Albany, etc., R. Co., 67 N. Y. 538; Travis v. Myers, 67 N. Y. 542; Jones v. Pouch, 41 Ohio St. 146; Long Mfg. Co. v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 32; Rogers v. Brightman, 10 Wis. 55. 69 Saunders v. Kastenbine, 6 B. Mon. 17. See also Kellogg v. Clark, 23 Hun, 393. 70 Cantwell v. Johnson, 236 Mo. 575, 139 S. W. 365. 71 Farrington v. Donohoe, Ir. Rep. 1 C. L. 675. 72 Sutcliff v. Atlantic Mills, 13 R. I. 480, 43 Am. Rep. 39. This case is defensible only on the assumption that the parties understood that A could not begin his year's service at once. do for three years), he will pay the mortgagor any balance received in excess of the amount of the mortgage debt,73 have all been held within the statute.74 Clearer cases are where the contract could not be performed according to the ordinary course of nature within a year, as where crops are to be produced,75 or the future young of animals are agreed to be sold," at a time which must fall beyond the end of a year. Whether a promise to perform a given act "within" a fixed period greater than a year should be within the statute would depend, if the cases in this section are sound, on whether the performance in question is capable of performance within a year, if the anticipated methods are followed. A contract to dig a tunnel within fifty years would then be within the statute if the contemplated method of performance would require necessarily more than a year. And this would be true even though by an enormous force of workmen, and perhaps by new inventions, performance might conceivably be made within a year." 77 On the other hand, if the contemplated mode of performance might possibly be carried out in less than a year, the contract would not be within the statute; 78 and by some courts 73 Frary v. Sterling, 99 Mass. 461. But see McGinnis v. Cook, 57 Vt. 36, 52 Am. Rep. 115. 74 See also for the point that the contemplation of the parties, not merely the possibilities legally open under the contract, is to be considered, Wagniere v. Dunnell, 29 R. I. 580, 73 Atl. 309. 75 Swift v. Swift, 45 Cal. 266; Eikelman v. Perdew, 140 Cal. 687, 74 Pac. 291. 76 Summerall v. Thoms, 3 Fla. 298; Butler v. Shehan, 61 Ill. App. 561; Groves v. Cook, 88 Ind. 169, 45 Am. Rep. 462; Williams v. Calloway, 12 Ky. L. Rep. 716; Lockwood v. Barnes, 3 Hill, 128, 38 Am. Dec. 620; Van Dyke v. Clark, 19 N. Y. S. 650. 77 A promise by a seller of an interest in a patent to repay the buyer the price paid by him if he should not within three years realize profits fro the patent equalling the price, was held within the statute in Lapham v. Whipple, 8 Metc. 59, 41 Am. Dec. 487. See also Moore v. Vosburgh, 66 N. Y. App. Div. 223, 72 N. Y. S. 696. 78 Thus a promise to marry within a period exceeding a year would not b within the statute, although the parties may not have expected the marriage to take place in less than a year. Paris v. Strong, 51 Ind. 339; Lawrence v. Cooke, 56 Me. 187, 96 Am. Dec. 443; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385. So an oral agreement made in October, 1886, to pay the seller of grain the market price thereof on any day prior to May, 1888, which the seller might choose, was upheld in Powder River Co. v. Lamb, 38 Neb. 339, 56 N. W. 1019. An oral agreement that a mortgagor might redeem oral promises to retain property until the profits should repay certain sums," or until a net profit of $50,000 had been realized, have been upheld without inquiry as to the possibility of achieving these results under the actually contemplated method of performance. 80 § 501. Promises to marry and promises falling within other clauses of the statute. It has been held in some cases that a promise to marry at a time more tham a year from the making of the agreement is not within the statute,81 but the contrary rule is better supported.82 If any distinction is made between contracts to marry and other agreements, it can be based only on an exception made to the statute in violation of its terms from judicial ideas of public policy. The fact that such promises have been held unaffected by the clause of the statute relating to promises in consideration of marriage is immaterial.83 Contracts which are not obnoxious to one clause of the statute are not therefore free from objection based on another clause, if that is applicable; and, on the other hand, contracts relating to land or goods, guaranties, as well as contracts relating to other matters, if Cat any time within three years was held valid. Bickel v. Wessinger, 58 Or. 98, 113 Pac. 34. See also Parker v. Siple, 76 Ind. 345; Linscott v. McIntire, 15 Me. 201; Kent v. Kent, 18 Pick. 569; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434. The opinion in Mills v. O'Daniel, 23 Ky. L. Rep. 73, 62 S. W. 1123, cannot be supported. The contract there provided that a certain sum should be paid and accepted in full satisfaction if paid "within two years." The court held the contract within the statute because suit could not be brought upon it until the two years had expired. But the statute invalidates contracts which cannot be performed within a year, not those in which the permissible period is greater than a year. See also Thomas v. Croom, 102 Ark. 108, 143 S. W. 88. 79 Daily v. Cain, 11 Ky. L. Rep. 936, 13 S. W. 424. 80 Hodges v. Richmond Mfg. Co., 9 R. I. 482. The parties in this case had apparently estimated the necessary period as two years or longer. See also Southwell v. Beezley, 5 Ore. 143, 458, where a contract to pay for sheep within three years, or as soon as the vendee can make the price out of them " was held not within the statute. 81 Blackburn v. Mann, 85 Ill. 222; Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385; Brick v. Gannar, 36 Hun, 52. 82 Ullman v. Meyer, 10 Fed. 241; Paris v. Strong, 51 Ind. 339; Nichols v. Weaver, 7 Kans. 373; Barge v. Haslam, 63 Neb. 296, 88 N. W. 516. 83 See supra, § 485; Derby v. Phelps, 2 N. H. 515. not performable within a year fall within the clause of the statute here under consideration, whether also objectionable under another clause or not. Thus, a contract purporting to lease realty is within the statute if the agreed end of the term is more than a year from the time the contract is made; although the term itself is of so short duration that it would be valid if the agreement provided that the term should begin presently,84 unless the local statute as construed by the courts provides that leases of certain length shall be valid, whether made a long or short time before they are to take effect.85 So a contract to sell goods not performable within a year is not excluded from the operation of the statute by the acceptance and actual receipt of the goods.86 84 Bain v. McDonald, 111 Ala. 269, 20 So. 77; Wickson v. Monarch Cycle Co., 128 Cal. 156, 60 Pac. 764, 79 Am. St. Rep. 36; Brodner v. Swirsky, 86 Conn. 32, 84 Atl. 104, 42 L. R. A. (N. S.) 654; Wheeler v. Frankenthal, 78 Ill. 124; Wolf v. Dozer, 22 Kans. 436; Boone v. Coe, 153 Ky. 233, 154 S. W. 900; Delano v. Montague, 4 Cush. 42; Shacklett v. Cummins, 178 Mo. App. 309, 165 S. W. 1145; White v. Holland, 17 Ore. 3, 3 Pac. 573; Anderson v. Frye, 69 Wash. 89, 124 Pac. 499; Brown v. Kayser, 60 Wis. 1, 18 N. W. 523. It is indeed said in Indiana that the clause of the statute invalidating oral agreements not performable within a year has no application to agreements concerning land. Baynes v. Chastain, 68 Ind. 376. See also Higgins v. Gager, 65 Ark. 604, 47 S. W. 848, but this statement would not generally be accepted. 85 See Higgins v. Gager, 65 Ark. 604, 47 S. W. 848; Sears v. Smith, 3 Col. 287; Steininger v. Williams, 63 Ga. 475; St. Josephs Co. v. Globe Paper Co., 156 Ind. 655, 59 N. E. 995; Stem v. Nysonger, 69 Ia. 512; Whiting v. Ohlert, 52 Mich. 462, 18 N. W. 219, 50 Am. Rep. 265; McCroy v. Toney, 66 Miss. 233, 5 So. 392, 2 L. R. A. 847; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434; Jones v. Bennett, 40 Okl. 664, 140 Pac. 148; Darnell v. Hume, 40 Okl. 668, 140 Pac. 775; Hillhouse v. Jennings, 60 S. C. 392, 38 S. E. 596; Hayes v. Arrington, 108 Tenn. 494, 68 S. W. 44. In Sutherland v. Drolet, 154 Wis. 619, 143 N. W. 663, the court held an oral agreement that a tenant was to occupy certain premises until they were sold void under St. 1911, § 2302, requiring an instrument in writing to create any interest in lands, except a leasehold for a term not exceeding one year; and further held that there is no analogy between that statute under which the lease must affirmatively show that the term does not exceed one year, and section 2307, requiring a writing for agreements which by their terms are not to be performed within one year (in which case the agreement is not void unless it affirmatively shows that it will not be performed within the year). 88 Prested Miners Co. v. Garner, [1910] 2 K. B. 776. § 502. Calculation of the term of a year. How the period of a year is to be calculated has given rise to some litigation. If a contract, for instance a contract of service, is for the term of a year beginning on the day of the contract, there is no doubt that the statute is inapplicable. It has also been held that an agreement for a year, performance for which is to begin on the day following the agreement, is not within the statute, since performance will end on the day exactly one year from the date of making the agreement; and the old maxim that the law disregards fractions of a day is invoked to prove immaterial any difference in the hour of the day when the contract was made, and the close of business hours.88 Other courts, however, discard fiction and calculating the period exactly hold the agreement within the Statute.89 But if an offer for a year's employment to begin at a future day is not accepted until the day when the employment begins, as the contract does not arise until the latter day the agreement is binding though oral.90 If in any case performance is to begin 87 Britain v. Rossiter, 11 Q. B. D. 123; Russell v. Slade, 12 Conn. 455; Sprague v. Foster, 48 Ill. App. 140; Aiken v. Nogle, 47 Kans. 96, 27 Pac. 825; Galvin v. Detroit Windshield Co., 176 Mich. 569, 142 N. W. 742; O'Donnell v. Daily News Co., 119 Minn. 378, 138 N. W. 677; A. B. Smith Co. v. Jones, 75 Miss. 325, 22 So. 802; Embrey v. Hargadine-McKittrick Co., 115 Mo. App. 130, 91 S. W. 170; Sheingold v. Baer, 145 N. Y. App. D. 493, 129 N. Y. S. 924. See also Sanborn v. Fireman's Ins. Co., 16 Gray, 448, 77 Am. Dec. 419. 88 Smith v. Gold Coast Explorers, Ltd., [1902] 1 K. B. 285, 538 (following Cawthorne v. Cordrey, 13 C. B. (N. S.) 406, and by implication overruling Dollar v. Parkington, 84 L. T. 470]; Dickson v. Frisbee, 52 Ala. 165, 23 Am. Rep. 565; Beller v. Klotz, 31 Dom. L. R. 647. 89 Raymond v. Phipps, 215 Mass. 559, 102 N. E. 905; Brosius v. Evans, 90 Minn. 521, 97 N. W. 373; Keller v. Mayer Fertilizer Co., 153 Mo. App. 120, 132 S. W. 314; McElroy v. Ludlum, 32 N. J. Eq. 828; Billington v. Cahill, 51 Hun, 132, 4 N. Y. S. 660. See also Bracegirdle v. Heald, 1 B. & Ald. 722, 726; Grant v. New Departure Mfg. Co., 85 Conn. 421, 83 Atl. 212; Reynolds v. Wymore Bank, 62 Neb. 747, 752, 87 N. W. 912. So exactly was time calculated in Shipley v. Patton's Admr., 21 Ind. 169, that a contract whereby A sold a horse to, B, and warranted that it should be sound for one year thereafter, and agreed that, if, after the expiration of one year, the horse should prove unsound he would take it back and pay the plaintiff one hundred dollars, was held within the Statute of Frauds, since the return of the horse must follow by however small a fraction of time, the expiration of a year. 90 Mobile, etc., R. Co., v. Hayden, 116 Tenn. 672, 94 S. W. 940. See also McArthur v. Times Printing Co., 48 Minn. 319, 51 N. W. 216, 31 Am. St. |