Amburger v. Marvin , 4 E.D. Smith 393 ( 1855 )

By the Court.

Daly, J.

The complaint sets forth that the defendant agreed, on the 18th of July, 1848, to employ the plaintiff", and to enter into a contract in writing to employ him as a clerk, for the term of one year, to commence on the 1st of August, 1848, and end on the 1st of August, 1849.

There can be no doubt that this was an agreement which, by its terms, was not to be performed within one year from the making of it, and was, therefore, void by the statute. (2 Rev. Stat. 4th ed. 317, § 2; Wilson v. Martin, 1 Denio, 602; Comst. v. Lawson, 16 Conn. 246; Willard v. Ives, 7 D. & Ky. 548; Tuttle v. Sweet, 31 Maine, 555.)

It is insisted that as the contract in writing might be entered into within the year, that it is not void ; but reducing the contract to writing is not a performance of it, or it is but a performance of part of it; and unless the contract is to be completely executed within the year, the case is within the statute. (Boydell v. Drummond, 11 East, 142; Brocigudh v. Heald, 1 Barn. & Adol. 722; Buch. v. Liverpool, 9 Barn. & Cres. 392; Lockwood v. Barnes, 3 Hill, 128, and cases collected in note in the last case.)

The only foundation for the distinction insisted upon here, is the case of Hollis v. Whiting, 1 Vern. 151, in which the Lord Keeper Guilbobd is reported to have expressed the opinion, that if it was part of the agreement that the agreement should be put into writing, it would alter the case; but Lord Thublow declared, in Whitechurch v. Bevis, 2 Bro. Chy. R. 558, that Hollis v. Whiting had never been decided.

There are cases in equity in which there has been a partial performance, under a parol agreement, to enter into a written agreement, as where a lessor agrees, by parol, to execute a lease for years, and the tenant in possession lays out money upon the premises in part performance of the agreement; (Wells v. Shadling, 3 Ves. 380;) or where a lessee has entered and engaged the premises under a parol agreement to enter into a lease (Earl of Aylesford’s Case, 2 Strange, 783,) in which specific performance has been decreed; but such cases are excepted from the operation of the statute solely upon the ground of fraud. (Story Eq. Jur. § 768, note 6; Jenkins v. Eldridge, 3 Story R. 292; Monlocute v. Maxwell, 1 Prince Wm. 619.) And the equitable doctrine recognized in those cases could have no application in a case like this, which is not that of an agreement executud in part, but of one entirely executory.

The defendant was not bound to plead the statute. The objection was to the whole cause of action set up by the complaint, and might be raised on the trial.

Judgment of nonsuit affirmed.