maintain the switch for the plaintiff's benefit for shipping purposes, as long as he needed it. The defendant pleaded that the contract was oral and within the statute of frauds, because it was 'not to be performed within one year from the making thereof,

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Point Involved: Whether a contract that may be performed within a year (though the possibility be remote), is a contract covered by the language of the statute of frauds "not to be performed within a year," in other words whether the statute requires contracts that may be performed within a year but may take longer than that time, or simply contracts that cannot be performed within a year to be in writing.

MR. JUSTICE GRAY: "In the earliest reported case in England upon this clause of the statute regard seems to have been had to the time of actual performance in deciding that an oral agreement that, if the plaintiff would procure a marriage between the defendant and a certain lady, the defendant would pay him fifty guineas, was not within the statute; Lord Holt saying: 'Though the promise depends upon a contingent, the which may not happen in a long time, yet, if the contingent happen within a year, the action shall be maintainable, and is not within the statute.' Francam v. Foster, (1692) Skin. 326; S. C., Holt, 25.

"A year later, another case before Lord Holt presented the question whether the words, 'agreement not to be performed within one year,' should be construed as meaning every agreement which need not be performed within the year, or as meaning only an agreement which could not be performed within the year, and thus, according as the one or the other constructions should be adopted, including or excluding an agreement which might or might not be performed within the year, without regard to the time of actual performance. The latter was decided to be the true construction.

(Here the Court discusses numerous authorities.)

"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 benefit 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 rail

road 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.'"'

Question 142: (1) State the facts in the above case, the question presented and the Court's decision.

(2) A orally agrees to support B for life. B is fifty years of age and in fair health. Is the contract enforceable? (Heath v. Heath, 31 Wis. 223.)

§ 122. (Contracts, Sec. 90.) Contracts of sale of goods, wares and merchandise, of a certain price or upwards are not enforceable unless (1) in writing and signed, or (2) there is part delivery and acceptance, or, (3) there is part payment.

(Note: For cases on this section of the statute see Subdivision "Sales.")

(c) What Amounts to Compliance with Statute.

§ 123. The memorandum and the signature.

§ 124. Compliance by delivery and acceptance in sales of personal property.

§ 125. Compliance by payment or part payment in cases of sales of per

sonal property.

§ 126. Contracts for "work and labor" not within the statute.

§ 127. The statute of frauds and the Uniform Sales Act.

§ 123. (Contracts, Sec. 91.) The memorandum and the

signature.

Case 143. Louisville Asphalt Varnish Company 7. Lorick & Lawrence, 29 South Carolina Reports, 533 (1888).

Facts: They are set forth in the opinion.

Point Involved: If a memorandum is made and signed by party to be charged after the contract is made, is it

sufficient to satisfy the statute of frauds? If there are a number of papers constituting the memoranda, to what extent must they show internally their own connection? Specifically, will a written and signed attempted cancellation by a party to a contract supply the evidence against him under the statute of frauds?

MR. JUSTICE McIVER: "This is an action to recover the sum of $83.05, the price of certain varnish and paint alleged to have been sold by plaintiff to defendants. The defense was a general denial. At the trial the plaintiff offered testimony tending to show that on the 16th of October, 1885, one of its traveling salesmen, Hutchinson by name, took from Moore, a clerk of defendants, who, it is admitted had authority to give the order, a verbal [oral] order for artioles specified in the account sued on, which Hutchinson immediately entered in his memorandum book as follows: (Here follows an item

ization, signed 'H. L. Hutchinson, salesman.')

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"On the same day a copy of this order was sent by mail by said salesman to plaintiff who received it on the 19th of October, 1885 On the 17th of October, 1885, the defendants wrote to plaintiffs as follows:

"Louisville Asphalt Varnish Co., Louisville,

"Gents: Don't ship paint ordered through your salesman. We have concluded not to handle it.'

"This letter, however, was not received by plaintiff until after the goods had been shipped; and upon its receipt plaintiff wrote defendants, saying, 'That the shipment had gone before the request to cancel was received.' When the goods arrived in Columbia the defendants declined to receive them, but what became of them, the testimony does not show.

"At the close of plaintiff's testimony defendants moved for a non-suit, which was granted upon the ground that section 2020, General Statutes (Statutes of Frauds), was fatal to a recovery. Plaintiff appeals upon the several grounds set out in the record, which make these two ques

tions: 1st. Whether there was such a note or memorandum in writing of the bargain as would satisfy the requirements of section 2020 of the General Statutes. 2nd. If not, whether there was such an acceptance and actual receipt of the goods as would take the case out of the operation of that section.

"It is quite certain that there was no formal agreement in writing, signed by the parties to be charged, for the sale of the goods in question, and we think it equally certain that there was no single instrument or memorandum in writing sufficient to satisfy the requirements of the statute; for the letter of the defendants, copied above, did not specify the necessary particulars as to quantity, nature, and price of the goods, which were the subjects of the alleged contract of sale, and the copy of the order sent by the salesman to the plaintiff, which did contain all the necessary particulars, was not signed by the defendants. It is plain, therefore, that neither one of these papers standing alone, would be sufficient. But as it is well settled that the whole agreement need not appear in a single writing, but may be made out from several instruments or written memoranda, referring one to the other, and which, when connected together, are found to contain all the necessary elements, the precise, practical question in this case is whether the letter of defendants can be connected with the written order sent by the salesman so that the two together may constitute a sufficient note or memorandum in writing to satisfy the requirements of the statute.

"It seems to us, therefore, that the letter of defendants, taken, as it must be, in connection with the order sent to plaintiffs by the salesman, to which it expressly referred, and which was in writing, and specified all the necessary particulars as to price, quantity, quality, and time of payment constituted a sufficient note or memorandum in writing of the bargain to take the case out of the statute of frauds. In the absence of any evidence that any other order was given, the language of the letter-'Don't ship