By the contract, for the breach of which this action is brought, the defendant agreed by parol with the plaintiff, that for the consideration of sixty-five dollars, he would give up and relinquish the trade and business of a butcher and all traffic in meats, either in butcher's wagons or shop, in and around the village of Knightsville. The question is, if such a contract will support an action, or whether it falls within that provision of Ch. 176, section 8, of the Revised Statutes, by which it is declared, that "no action shall be brought whereby to charge any person upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing," c., "signed by the party to be charged therewith," c. The provision on this subject is the same as that contained in the Statute 29 Charles II., Ch. 3, commonly called the statute of frauds. That statute was introduced here by a colonial act of 1749, and declared to be in force in this colony. It had then received a judicial construction in England, upon many of its provisions; and among others, upon the one now in question. In one of the earlier cases, (Peter v. Compton, reported in Skinner, 353,) the contract was to pay the plaintiff a sum of money on his marriage, *Page 334 which did not take place till nine years after the making of the contract. In this case it was held, that if it did not appear by the terms of the agreement, that it is to be performed after the year, then a note or memorandum in writing is not necessary. The case of Fenton v. Emblers, 3 Burr. 1278, recognized the same construction. The contract in that case was, to leave the plaintiff a life annuity, payable from the day of the possessor's death; and it was said that the statute did not extend to a case depending upon a contingency, or to any case where the thing may be performed within the year; and that the action was brought for the testator's not having done what he ought to have done in his lifetime, viz., made the bequest by will, and which he might have done within a year. Wells v.Horton, 4 Bingh. 40, was a like case with that of Fenton v.Emblers, which was recognized as an authority for its determination. A being indebted to B, in consideration of B's forbearance to sue, promised that his executor should pay him £ 10,000. In this case it was said by Park, "there is nothing to show that the contract is not to be performed within a year. It rests upon a contingency, and may be performed within the year, "referring to the rule laid down in Peter v. Compton. Best, J., in the same case, said, "the statute is confined to contracts which, by agreement, are not to be performed within a year, and not to such as may, by circumstances, be postponed beyond the year." "This was agreed by the twelve judges, in Fenton v.Emblers."
The cases in this country generally concur in this construction. It is recognized and affirmed in Clark v.Pendleton, 20 Conn. 495; Moore v. Fox, 10 John. 244; Kent v. Kent, 18 Pick. 569; Peters v. Westborough, 19 Ib. 364;Ellicott v. Peterson, 4 Md. 476; Lyon v. King, 11 Metc. 411, and in Blanding v. Sargent, 33 N.H. 239. The last two cases are precisely in point with the case before us. The case ofLyon v. King was a contract not to engage thereafter in the staging business, or livery stable keeping, in Southbridge. The case of Blanding v. Sargent was a contract for the purchase of the business and good will of a physician, he agreeing not to return to his practice thereafter. The agreement in either case was personal to the defendants, not to exercise the trade or profession; and it was held, that if the *Page 335 defendant had died within the year, as he might, the contract would have been fully performed within the year, and so was not within the statute.
None of the cases cited by the counsel for the defendant, so far as we have been able to examine them, are in conflict with the rule or construction laid down in the cases referred to. The case of Delano v. Montague, 4 Cush. 42, upon which some stress was laid, was an agreement for a lease for one year, to commence on the expiration of a lease then current. It was, therefore, a contract which was not to be, and could not be, performed within a year from the time of making, and must, if at all, have been performed after the year. The case of Dobson v.Collis and others, 37 Eng. L. Eq. 499, was a contract to serve the defendant as a traveller, from October 2, 1854, to September 1, 1855, and for a year thereafter, unless the contract should be determined by three months notice. Pollock, Ch. B., referred to the case of Bracegirdle v. Heald, 1 Barn. Ald. 722, as an authority that the contract, apart from the defeasance, would be within the statute, (i.e., one not to be performed within a year,) and that it was not the less so, because it may be put an end to within that period, and says, "a lease for five years does not cease to be a lease for five years, because it may be defeated at the end of the first." The case ofBirch v. Earl of Liverpool, 9 B. C. 392, was determined by the same rule. That was a contract for the hire of a coach for five years, determinable at the end of one year; and it was held to be within the statute, as the contract could not be performed within a year, and the provision for putting an end to the contract did not provide for performance, but for putting an end to it altogether. The case of Holloway v. Hampton, 4 B. Mon. 415, depended upon the same principle. That was a contract for the crop of three years, the contract determinable upon the death of either party. The crop of the third year could not be delivered during the first year.
The contract here is one by the terms of which it does not appear that it is to be performed after the year. The performance is complete upon a contingency, viz.: the death of the defendant, which might happen within a year, and so the contract might be performed before the expiration of the year, within the *Page 336 terms of the agreement. It was, in substance and effect, a contract by which the defendant was to refrain from doing the act during his life, which might not endure for a year; and if it should not, the defendant would have performed all that the contract required. It was not, therefore, a contract which the statutes required to be in writing.
The motion for a new trial must be denied, with costs.