Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-03-29
opinion OF Lord Tenicrden, where Mr. JUS
tce Abbott, IN Bracegirdle vs.. Heald.
CASES QUOTED.

tbInk il was wrong. (Smilh ou Contracts,
post.) Peter vs.. Compton, which he relies
on, d0fs not support his CONCLUSION. 1hst
case only shows that there being two answers
TO the statute OF frauds. Lord Holt adopted
one, when the other would also have been
complete, the other members Of the court
concUrrinV with parke B.
This ruling his been approved and fol-
lowed IN many American cases, though not
uniformly 80. liabr0og Va. Armstrong. l
Fairfield, 81, Rake vs.. Pope, Ala, lGl;
johnson vs.. Watson. Kelly. 34S. This doc
trIue Is thus stated By Mr. smith. (Smlth on
Contracts, y. 1I2.) When, however. all that
is 10 be done by one party a. the consider1-
ton for what Is to be done by the other ac-
tually Is done by the one within the wear.
the statute does not prevent that party SUNG
the other for the performance Of his part
Of the contract.
CONTRACTS.
when one has had the full benefit Of the
contract the law will not permit The other to
Withhold the confederation. citing numerous
cases, both English aud American. II by
its terms or by reasonable construction
contract not in writing can be fully per-
formed within a year, although 1t can be
done only by the occurrence Of some i'm
probable event, 9s the death OF the person
referred 10, il is not within the statute, 50 II
II can be performed on one side within the
year. Banding vs.. Sargent. 90 n. Hamp.,
239; Virgins IS. kciser. 6 Id, 2j2; Sag
gins vs.. Heard, 81 Miss, 426; SAggert W.
Casou. 2G Mo-, 22l; BurneY W. Ball, ~
Ca. 505 Sherman Us. Champlain Co., 81
Vermont. lG2; Wilson vs.. Ray, 13 Ind, ];
Hill vs.. Jamison, l6 Ind, l2j.
Mr.. Bishop says l.. OF Con. p. $50: "The
N..l -. d fhnt
writing Is essential or not according as the
completed dong Of thing must, by the
terms Of the sgreement necessarily be post
poned beyond the year, or may taH 'cth'n
It,"
PAROL CONTRACT AND THE STATUTE.
As II the performance depends on the
death OF a person. or the coming in
OF a ship, or any other contingent event
which may or not happen within the year.
no writing is required. OMerlotse, If there
Is q fixed date forward more than yesr.
see also Paris VI. strong, 81 Ind, 359;
Withers vs. Richardson, . +. Il. Mon, o.
In the supreme Court of the United STATES
Mr.. Justice Miller said IN I this subject
(Walker ". johnson, 90 l. :. RI: SIN
order to bring parol contract within the
ststute II must appear aiiirmaiiyelV that the
contract was not TO be performed within the
year" In Mcpherson W. Cox (96 L. ;.
l0D IL was said in the same court that the
statute applies only to contracts which by
their terms are not TO be performed within
the year, and not TO contracts which may
not be performed within that tlme.' To
the same end are white vs.. llancbett, 2l
Wis, Ais: Blskcly vs. GOode, 30 OHIO ST.,
$50; Thomas W. Hammond. A. Texas, AZ;
SOmberby W. Bunl'ug. lis Mass. 219, and
Jordan ". Miller, - Va. $50; benjamin on
sales, Vol. !, l52.
In the case Of the Packet Company vs..
Slckles. Is Wal, $50 relied on by the de-
feudant IN error, the Court held that the
contract being by It's terms extended be-
yOnd aycar-tO-Wit twelve yesrs-lbat IL was
within the statute, notwithstanding the pro-
viso. II the boat should last so long. That
is.that the possibility Of the dcieasance within
The year does not make II the less con-
tract 10 be- performed beyond the year, aud
10 the same effect arc mlny other cases
cited. Birch v. the Earl Of Liverpool, .,
Barpwal q CrCswell, 392. DObsOn VS.. Is
pfie. llnrstone q Norman, 81.
TIE REASON.
This has been often held and the reason il
that the contract being one 10 be performed
by its terms beyond the year CONES within
the statute, although il may be defedted
within the year, possible defeasance not AL
icctlng the time when by its terms u may be
performed. We are dealing with the statute
tbat provides "any agreement that Is not TO
be performed ,cihm a year." not any agree
ment tLat is not 10 be defeated within
a year. And we think the distinction Is
clearly defined in reason as well As by
the cases. II the agreement may be per-
formed within year II cannot be said that
by lis terms il is not TO be performed ~lihin
year because II may by lis terms be per.
f0y4aed witnn that time. Butii 10y It's terms
II is 10 be performed beyond the year II
comes within the statute, and that 1t contains
provision for possible defeaSGhCe within
the year does not make IL thereby capable OF
being pertmmed. otherwise than as pro-
Weed beyond the year, to defeat is not TO
perform.
WANT or MCTUALITY.
BIT it ia further argued that there is an
option granted 10 OHe side which Il not
granted to the other, and there Is want Of
muiuality. II this is SO, then as TO all cases
where Ote side grants an option 10 the other,
which l. no, unusual, the contract IN not
binding. But 10 is pressed further that inih-
ont the option the contract is one 10 be per.
formed beyond The year, Grant IT, and the
reply is o. that such y not this contract;
IN that the provision which TINS cOnalOeTa-
non excludes is the provision which rem
ders il capable Of being performed within
the wear, and which takes It out OF the
statute. TO consider the contract with that
excluded Is not this case.
JUDGMENT REVERSED.
We think tue Circuit Court clearly erred
I'm rejecting the PLAINTIFFS instruction as
asked, ana the judgment will Tor that cause
be reversed and the ease remsnded TO the
Circuit Court with directions to set aside
the verdict aud grant new trial to the
plaintiff, at which new trial, II the evidence
Shall be the same aud the same instruction
asked bv The pl,intiil, 1t must be given, and
the instruction given by the Court at the
first trial is erroneous and must not be again
given.
OTHER CASES.
Saunders against james and others. From
the Circuit Court Of Lancaster county. Al
Grmcd, Judge Faunlleroy delivering the
opinion.
Avres against Wells. Further argued by
W. W. Henry, Esq, for appellant. and sub
mitted.
Slater, Myers Il Co. against Moore.
Argued by Judge W. Ii. Burroughs for ap-
pellants, and submitted.
Pages sdminiStratnN and ais. against
Iindsay and others Argued by Oyerlon