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must mean the complete performance or consummation of the work : and that is confirmed by another part of the statute requiring only part performance of an agreement, to supersede the necessity of reducing it to writing; which shows that when the legislature used the word 'performed' they meant a complete, and not a partial performance. . . . . Here by the very terms of the contract, and clearly in the contemplation of the parties, from the whole scope of it, it was not to be performed within a year; for the agreement was, to publish at least one number annually, after the delivery of the first, and according to the number of pictures to be published, at the rate of two for each play, the work would consist of many numbers.” And Bayley, J., said,(a) “It was clearly the understanding of all parties that the contract was not to be performed within a year, and if the publishers could by possibility have completed the work within that time, they could not have compelled the defendant to have taken and paid for it immediately. I use the word 'completed' because I think that is the true meaning of the word 'performed' used in the statute. The cases have decided that in order to bring a contract within this branch of the statute, it must either have been expressly stipulated, or it must appear to have been the understanding of the parties, that it was not to be performed within a year.
That does appear in the present case, and I cannot say that a contract is performed, when a part of it remains unperformed within the year; or in other words, that part performance is performance.” (b) So where the following memorandum was made between the plaintiff and defendant, and signed with their respec(a) P. 159.
(b) And see Bracegirdle v. Ileald, 1 B. & Ald. 726.
tive initials : “ Dict of Practice £80 per annum, for 5 years, commencing Michaelmas, 1828: £60 per annum for the remainder of Mr. Lee's life, if he survive the first five years: payable in either case quarterly, the first payment Michaelmas, 1828. Mr. Lee to separate the practices K B, and CP;” it was held that inasmuch as the memorandum appeared to be of a contract that was not to be performed within a year, and no consideration was stated on the face of it, it came within the fourth section of the statute, and was therefore not capable of being enforced by action.(a)
In the recent case of Eley v. The Positive Assurance Company,(6) the articles of association of a company contained a clause in which it was stated that the plaintiff should be solicitor to the company, and should not be removed from his office unless for misconduct. The articles were signed by seven members of the company, and were duly registered. The plaintiff was not appointed solicitor by any instrument under the seal of the company. It was held that the contract was one “ not to be performed within a year,” and must therefore be in writing, and that the signatures to the articles of association, which were affixed alio intuitu, were not signatures to a memorandum of the contract within the statute so as to bind the company.
Where a contract is void by reason of the statute, but services have been rendered, and things actually done in pursuance of the contract, the terms upon which the services were rendered and the things done, may be proved by parol evidence. (c)
(a) Sweet v. Lee, 4 Sc. (N. R.) 77-90; and see Roberts v. Tucker, 6 Exch. 632.
(6) L. R. 1 Ex. D. 20.
(c) Souch v. Strawbridge, ? C. B. 808; 15 L. J. C. P. 172:
But where the contract is such that the whole
be performed within a year, and there is no express stipulation to the contrary, the statute does not apply. Thus, which may a contract for the maintenance of a child at the possibly be
performed defendant's request, to continue “ so long as the defen- within a year. dant shall think proper” is a contract upon a contingency, the performance of which is not necessarily to take place beyond the space of a year, and therefore is not within the statute. (a) So where the defendant, who was the father of seven illegitimate children of the plaintiff, agreed with her verbally to pay her £300 per annum by equal yearly instalments, for so long as she should maintain and educate them, the eldest child being then fourteen years old, it was held that the agreement was binding. (6)
And an agreement whereby, in consideration of A not taking proceedings against B's son, B agreed to maintain and clothe A, and supply him with the grass of two sheep during his life, was held not to be within the statute, as the life of A was an uncertain event which might determine within a year. (c) But an agreement to maintain a child known to be about five years old until she could "do for herself,” was held to be within the statute, as it clearly contemplated an event not to be performed within a year, although it might be determined by the death of the child within a year. (d)
Again, where a testator promised by parol for valuable
Collis v. Bothamley, 7 W. R. 87; and see Add. on Contrs. 7th ed. 153.
(a) Souch v. Strawbridge, 2 C. B. 808.
(6) Knowlman v. Bluett, L. R. 9 Ex. 1.
(c) Murphy v. O'Sullivan, 11 Ir. Jur. 111.
(d) Farrington v. Donohoe, 1 Ir. Rep. C. L. 675.
Agreement to be performed
on & con
consideration to leave his brother's children a certain amount by will, it was held that a binding obligation was constituted which could be specifically performed. (a) And where a parol promise was made to pay so much money upon the return of such a ship, which ship happened not to return within two years' time after the promise was made, it was held that this was a good promise, and not within the statute, as by possibility the ship might have returned within a year.(b)
Where an agreement is to be performed on a contingency which may happen within the year after it is made, and it does not appear on the face of the agreement that it is to be performed after the year, it does not fall within the statute. Where, therefore, a debtor to the plaintiff stated to the plaintiff's solicitor, on being applied to for payment, that he, the debtor, could not pay then or during his lifetime, but that he had provided for payment by his will, and directed his executor to pay,
it held that the promise was binding on the executor, although there was no promise in writing by him to pay. (c)
So where the defendant promised for one guinea to give the plaintiff so many at the day of his marriage, and the marriage did not take place for nine
years, was held that a writing was not necessary, and the Court said, that where the agreement is to be performed upon a contingent, and it does not appear within the agreement that it is to be performed after the year, then a
(a) Ridley v. Ridley, 34 Beav. 478; 6 N. R. 11; 34 L. J. Ch. 462; and see Fenton v. Emblers, 3 Burr. 1282; 1 W. Bl. 353.
(b) Anon. 1 Salk, 280; and see Francam v. Foster, Skin. 326.
(c) Wells v. Horton, 12 Moo. 177; 4 Bing. 40; and see Smith v. Neale, 2 C. B. (N. S.) 67; Smith v. Westall, Ld. Raym. 316; 3 Salk, 9.
note in writing is not necessary, for the contingent might happen within the year: but where it appears by the whole tenour of the agreement that it is to be performed after the year, there a note is necessary.(a)
A contract for a year's service to commence at a Contract for future day, being a contract not to be performed within a commence at a year from the making, is within the statute. In Bracegirdle future day. v. Heald, (b) Lord Ellenborough said: “If we were to hold that a case which extended one minute beyond the time pointed out by the statute, did not fall within its prohibition, I do not see where we should stop; for in point of reason, an excess of twenty years will equally not be within the act. Such differences rather turn upon the policy than the construction of the act.”(c) In Cawthorne v. Cawdrey, (d) it was held that a contract of hiring made on the 24th of March for a year's service, to commence on the 25th, was not void by the statute ; but that case was decided on the ground that there was evidence upon which the jury were at liberty to find that there was a contract on the 24th for a year's service.
Although no action can be brought on the parol agreement the servant may, in the event of sufficient service under it, acquire a settlement.(e)
A general hiring for a year, and so on from year to Hiring for one year, for so long a time as the parties shall respectively please, is not within the statute. (f)
(a) Peter v. Compton, Skin. 353; Holt, 326 ; and see Gil. bert v. Sykes, 16 East, 154.
(b) 1 B. & Ald. 722.
Lord Huntingfield, 1 C. M. & R. 20; 4 Tyr. 606; Banks v. Cross
land, L. R. 10, Q. B. 97.
(d) 18 C. B. (N. S.) 406.
(e) Bracegirdle v. Heald, i B. & Ald. 727, per Bayley, J.
(f) Beeston v. Collyer, 12 Moo. 552; 4 Bing. 309; Giraud v. Richmond, 2 C. B. 835.