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from the making thereof' means, in the statute of frauds, an agreement which appears from its terms to be incapable of performance within the year." And each of the three judges took occasion to express approval of the decision in Murphy v. O'Sullivan, above cited, and to disapprove the opposing decision of Hawkins, J., in Davey v. Shannon, 4 Exch. Div. 81.

The cases on this subject in the courts of the several states are generally in accord with the English cases above cited. They are so numerous, and have been so fully collected in Browne on the Statute of Frauds (5th ed. c. 13), that we shall refer to but few of them, beyond those cited by counsel in the case at bar.

[The court then states Peters v. Westborough, ante, p. 120.]

In many other States, agreements to support a person for life have been held not to be within the statute. Browne, St. Frauds, c. 13, § 276. The decision of the Supreme Court of Tennessee in Deaton v. Coal Co. (12 Heisk. 650), cited by the defendant in error, is opposed to the weight of authority.

[The court then discusses Roberts v. Rockbottom Co., 7 Met. (Mass.) 46; Blanding v. Sargent, 33 N. H. 239; Hinckley v. Southgate, 11 Vt. 428; Linscott v. McIntire, 15 Me. 201; Herrin v. Butters, 20 Me. 119; Broadwell v. Getman, 2 Denio (N. Y.) 87; Pitkin v. Long Island Railroad Co., 2 Barb. Ch. (N. Y.) 221; Kent v. Kent, 62 N. Y. 560; Saunders v. Kastenbine, 6 B. Mon. (Ky.) 17; Railway Co. v. Whitley, 54 Ark. 199; Sweet v. Lumber Co., 56 Ark. 629.]

The construction and application of this clause of the statute of frauds first came before this court at December term, 1866, in Packet Co. v. Sickles (5 Wall. 580), which arose in the District of Columbia under the statute of 29 Car. II. c. 3, § 4, in force in the state of Maryland and in the District of Columbia. Alex. Br. St. Md. 509; Ellicott v. Peterson, 13 Md. 476, 487; Comp. St. D. C. c. 23, § 7.

That was an action upon an oral contract, by which a steamboat company agreed to attach a patented contrivance, known as the "Sickles Cut-Off," to one of its steamboats, and, if it should effect a saving in the consumption of fuel, to use it on that boat during the continuance of the patent, if the boat should last so long; and to pay the plaintiffs weekly, for the use of the cut-off, three-fourths of the value of the fuel saved, to be ascertained in a specified manAt the date of the contract the patent had twelve years to run. The court, in an opinion delivered by Mr. Justice Nelson,

ner.

held the contract to be within the statute, and said: "The substance of the contract is that the defendants are to pay in money a certain proportion of the ascertained value of the fuel saved at stated intervals throughout the period of twelve years, if the boat to which the cut-off is attached should last so long." "It is a contract not to be performed within the year, subject to a defeasance by the happening of a certain event, which might or might not occur within that time." (5 Wall. 594-596.) And reference was made to Birch v. Liverpool (9 Barn. & C. 392) and Dobson v. Collis (1 Hurl. & N. 81), in each of which the agreement was for the hire of a thing, or of a person, for a term specified of more than a year, determinable by notice within the year, and therefore within the statute, because it was not to be performed within a year, although it was defeasible within that period.

In Packet Co. v. Sickles it appears to have been assumed, almost without discussion, that the contract, according to its true construction, was not to be performed in less than twelve years, but defeasible by an event which might or might not happen within that time. It may well be doubted whether that view can be reconciled with the terms of the contract itself, or with the general current of the authorities. The contract, as stated in the forepart of the opinion, was to use and pay for the cut-off upon the boat "during the continuance of the said patent, if the said boat should last so long." (5 Wall. 581, 594.) The terms "during the continuance of" and "last so long" would seem to be precisely equivalent, and the full performance of the contract to be limited alike by the life of the patent and by the life of the boat. It is difficult to understand how the duration of the patent and the duration of the boat differed from one another in their relation to the performance or the determination of the contract; or how a contract to use an aid to navigation upon a boat so long as she shall last can be distinguished in principle from a contract to support a man so long as he shall live, which has been often decided, and is generally admitted, not to be within the statute of frauds.

At October term, 1877, this court, speaking by Mr. Justice Miller, said: "The statute of frauds applies only to contracts which, by their terms, are not to be performed within a year, and does not apply because they may not be performed within that time. In other words, to make a parol contract void, it must be apparent that it was the understanding of the parties that it was not to be

performed within a year from the time it was made." And it was therefore held, in one case, that a contract by the owner of a valuable estate, employing lawyers to avoid a lease thereof, and to recover the property, and promising to pay them a certain sum out of the proceeds of the land when recovered and sold, was not within the statute, because all this might have been done within a year; and, in another case, that a contract, made early in November, 1869, to furnish all the stone required to build and complete a lock and dam which the contractor with the State had agreed to complete by September 1, 1871, was not within the statute, because the contractor, by pushing the work, might have fully completed it before November, 1870. McPherson v. Cox, 96 U. S. 401, 416, 417; Walker v. Johnson, Id. 424, 427.

In Texas, where the contract now in question was made, and this action upon it was tried, the decisions of the Supreme Court of the State are in accord with the current of decisions elsewhere.

[The court then discusses Thouvenin v. Lea, 26 Tex. 612; Thomas v. Hammond, 47 Tex. 42; Weatherford, &c. Railway Co. v. Wood, 88 Tex. 191.]

In the case at bar, the contract between the railroad company and the plaintiff, as testified to by the plaintiff himself, who was the only witness upon the point, was that, if he would furnish the ties and grade the ground for the switch at the place where he proposed to erect a sawmill, the railroad company would "put down the iron rails and maintain the switch for the plaintiff's benefit for shipping purposes as long as he needed it."

The parties may well have expected that the contract would continue in force for more than one year. It may have been very improbable that it would not do so; and it did in fact continue in force for a much longer time. But they made no stipulation which, in terms, or by reasonable inference, required that result. The question is not what the probable, or expected, or actual performance of the contract was, but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year. No definite term of time for the performance of the contract appears to have been mentioned or contemplated by the parties, nor was there any agreement as to the amount of lumber to be sawed or shipped by the plaintiff, or as to the time during which he should keep up his mill.

The contract of the railroad company was with, and for the bene

fit of, the plaintiff personally. The plaintiff's own testimony shows (although that is not essential) that he understood that the performance of the contract would end with his own life. The obligation of the railroad company to maintain the switch was in terms limited and restricted by the qualification "for the plaintiff's benefit for shipping purposes as long as he needed it," and no contingency which should put an end to the performance of the contract, other than his not needing the switch for the purpose of his business, appears to have been in the mouth or in the mind of either party. If, within a year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad company would have been no longer under any obligation to maintain the switch, and the contract would have been brought to an end by having been fully performed.

The complete performance of the contract depending upon a contingency which might happen within the year, the contract is not within the statute of frauds as an "agreement which is not to be performed within the space of one year from the making thereof."

Nor is it within the other clause of the statute of frauds, relied on in the answer, which requires certain conveyances of real estate to be in writing. The suggestion made in the argument for the defendant in error, that the contract was, in substance, a grant of an easement in real estate, and as such within the statute, overlooks the difference between the English and the Texan statutes in this particular. The existing statutes of Texas, while they substantially follow the English statute of frauds, so far as to require a conveyance of any "estate of inheritance or freehold, or for a term of more than one year, in lands and tenements," as well as "any contract for the sale of real estate, or the lease thereof for a longer term than one year," to be in writing, omit to re-enact the additional words of the English statute, in the clause concerning conveyances, "or any uncertain interest of, in, to, or out of" lands or tenements, and, in the other clause, "or any interest in or concerning them." St. 29 Car. II. c. 3, §§ 1, 4; Rev. St. Tex. 1879, arts. 548, 2464; Pasch. Dig. arts. 997, 3875; James v. Fulcrod, 5 Tex. 512, 516; Stuart v. Baker, 17 Tex. 417, 420; Anderson v. Powers, 59 Tex. 213.

Judgment reversed, and case remanded to the Circuit Court, with directions to set aside the verdict, and to order a new trial.15

ENGINEERING CASES: EXCERPTS FROM DECISIONS.

STATUTE OF FRAUDS.

A contract to furnish a monument for a certain price, to be erected by a state on a battlefield, was held not to be a contract for the sale of goods, within the statute of frauds, though the contractors were not bound to bestow their personal skill and labor thereon. Forsythe v. Mann (Vt.), 34 Atl. Rep. 481.

A verbal contract to furnish material, and, after performing labor thereon, to attach it to the realty, as a part of a building in course of construction, is not a sale of goods or chattels, and is not within the statute. Brown, Etc., v. Wunder (Minn.), 67 N. W. Rep. 357.

An agreement to take down a building and re-erect it on another lot was held not a sale of goods, but an agreement for labor. Scales v. Wiley (Vt.), 33 Atl. Rep. 771.

A bill of parcels, a receipt for money, a vote of a private or municipal corporation duly entered on its books, or a series of letters or of telegrams, may make the necessary memorandum. Camden I. Wks. v. Fox, 34 Fed. Rep. 200.

A verbal agreement to make annual payments on a contract which was to continue sixteen years is within the statute, and cannot be enforced. Jackson Iron Co. v. Negaunee C. Co., 65 Fed. Rep. 298.

A verbal contract to construct a road or a house within a year and twenty days from the date thereof was held valid, as it might be completed within the year. Jones v. Pouch, 41 Ohio St. 146.

A verbal contract to deliver ties, etc., on the line of a railroad, to be inspected once a month and paid for at current prices, the

45 A contract to marry is not within this clause of the statute of frauds. Lewis v. Tapman (Md.), 45 Atl. 459; citing Derby v. Phelps, 2 N. H. 515; Nichols v. Weaver, 7 Kans. 373; Ullman v. Meyer, 10 Fed. Rep. 241; Contra, Brick v. Gannar, 36 Hun (N. Y.) 52; Blackburn v. Mann, 85 Ill. 222.

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