Hinckley v. Southgate , 11 Vt. 428 ( 1839 )

Redfield, J.

Upon the question, whether this contract is concerning an interest in land, the court express no opinion.

The case is decided upon that clause of the statute to prevent frauds and perjuries, which requires contracts, not to be performed within one year, to be in writing. The statute is in these words ; “ That no suit, in law or equity, shall be brought or maintained upon any agreement, that is not to be performed within one year from the making thereof.”

The case before the court, would,seem to come clearly within the terms of the statute. The contract, in this case, was clearly not to be “ performed,” i. e. completed, within one year from the “ making thereof.” Such was the decision of this court in the case of Squire v. Whipple, 1 Vt. R. 69. Such is the language of Lord Ellenborough, in Boydell v. Drummond, 11 Easts’ R. 142. It has been argued that an inchoate performance within the year is sufficient to' take the case out of the statute, but the word is “ performed-,” which, ex vi termini, must mean the complete performance, or full consummation of the work. The case of Bracegirdle v. Heald, 1 B. & A. 722, is almost the very case now in judgment, and was held to be clearly within the statute.

It is, indeed, not true, that every contract which shall happen not to be performed within the year from the making, is therefore, within the statute. If the time of performance depends upon a contingency, which may reasonably be expected to happen within the year, the contract is not required to be in writing. If the promise be to pay so much money on the return of a ship', which ship happened not to return within two years, the case was held not within the statute. Anonymous, 1 Salkeld, 280. In Fenton v. Emblers, 3 Burrow’s R. 1278, Denison J., says, the statute only extends to those cases, which are “ specifically agreed not to be performed within the year.” It is doubtless true, that the statute does not extend to any case, where the time of performance is uncertain, but is expected to come, or may probably, come within one year. In such case the parties might be said to act in good faith, in relation to the requisitions of the statute, in not reducing their contract to writing. But where the contract is not expected to be performed within the year, but depends upon a contingency, which may, by mere possibility, occur within the year, it would seem but a reasonable strictness of construction, to require the contract to be reduced to writing. Such was, in effect, the case of Boy dell v. Drummond, 11 Easts. R. 142. 1 Swift’s Dig. 263.

Judgment affirmed.