By the Court,
Paine, J.This action was brought by the plaintiff as surviving partner of the firm of Tuttle & Rogers, to recover possession of a quantity of logs. The defense set up was that the defendants had possession of the logs under a contract made with Tuttle, the' deceased partner, by which he delivered to them about five thousand logs at at their mill, which they were to manufacture into lumber, sell and pay themselves out of the proceeds, at the rate of $5 per 1000 feet, for sawing.
The parties were both sworn, and when one of the defendants was examined, his counsel sought to prove by him the contract as actually made with Tuttle. This was.objected to, and the evidence rejected, on the ground that under sec. 51, chap. 137, R. S., 1858, which allows parties to be witnesses, they are yet not allowed to testify as to any transaction conducted by an agent of the opposite party, unless the agent is still living. This ruling was excepted to, but we think it correct. Each partner is to all intents and purposes an agent of the firm, and of the other partners, as to matters within the scope of the partnership business. And where a contract is made by one partner for the firm, we think, after his decease, a contest between the survivor and the other parties in relation to it, is a case not only within the spirit but within the letter of this provision of the statute. Its object was to allow the parties to testify to such matters, as to which they stood upon an equality, in each being able to produce the testimony *63of the person actually conducting the business, but to exclude them where this equality had ceased to exist.
A number of other exceptions were taken which we do not deem it necessary to notice, as we think the judgment must be reversed for the following reasons : It appears from the case that the principal contest both as to law and fact, in the court below, was, whether the contract set up by the defendants was within the statute of frauds or not. And we have found some difficulty in disposing of the exceptions upon this point, in view of the partially conflicting ruling of the court below in regard to it. The second instruction asked by the defendant’s counsel was refused. The only doubt we have as to the correctness of this instruction is upon that clause which says that in order to be within the statute, the contract must contain some provision which “ amounts to a prohibition” of its completion within the year. If the instruction had said it must contain a “ prohibition, it would have been properly refused, because that would imply an actual prohibition in terms. And this is not necessary; as if it appears by the terms of the contract that it cannot in the nature of things be performed within the year, it is within the statute, though it contains no express prohibition. But there may be room for doubt rvhether the provisions of such a contract would not “ amount to a prohibition, or be equivalent to one so far as their effect was concerned. But, conceding that for this inaccuracy the instruction was properly refused, we think the next should have been given.
In this the court was asked to instruct the jury “that if they believed that no time was ever agreed upon between the parties for the completion of this contract, then the statute of frauds did not apply.” This the court refused, but in its general charge stated the law correctly to the jury, and told them the contract was not bad under the statute for not being in writing, unless by its express terms it was not to be performed *64within one year. We regard this, therefore,-as a case where the court refused a proper instruction upon the point, and yet stated the law correctly in its general charge. Should the judgment be reversed for that reason ? We think it should; unless it clearly appears that the refusal did not, or could not prejudice the rights of the party. And upon looking into the evidence to see whether that appears, we think it does not; but that, on the contrary, it appears that the defendants must have been prejudiced by it; and that the jury must have found that the contract was within the statute and void. We think this must have been so, for the reason that there was no material conflict in the evidence, as to the actual making of the verbal contract. A number of witnesses testify to admissions by Tuttle in his lifetime that he had made a contract with the defendants to saw the logs he had delivered to them. All the evidence in the case goes to show that they were delivered under some contract in regard to their sawing. And the plaintiff himself in his testimony, folio 16 of the printed case, admits that he had understood the contract to be substantially as set up by the defendants, except that he did not understand that any particular amount of sawing was agreed on. But he admits that all the logs delivered to defendants were delivered at one time; and we see nothing in the evidence tending to raise any question, but that whatever contract was made, related to all the logs delivered. And if this was so, the defendants were rightly in possession for the purpose of performing their contract, unless it was void within the statute.
And assuming it to be as stated by all the witnesses who testified in regard to it, and as admitted by the plaintiff, that he understood it, we think it was not. It is true, that the evidence of the defendants themselves showed that the logs could not all have been sawed by their mill, within one year from the time the contract was made. And it is also probable *65that the parties contemplated that they would be sawed at that mill. But this is not the question presented by the statute. That is, whether, by the terms of the contract, it is not to be performed in the year. The only contract shown here, or which any of the evidence tends to show, is, that the defendants were to saw the logs, sell the lumber, and pay themselves out of the proceeds. Now, we think, in order to make a contract void within this clause of the statute, it must be such that when its terms are known to the court, it can say from them, that it could not be performed within the year.. And if this cannot be done, but it appears that everything provided for by the contract, may, in the nature of things and without any violation of its provisions, be done within the year, it cannot then be avoided by an outside inquiry to show that by the means and course of performance which the parties contemplated using, it would necessarily occupy a longer time. The authorities even go further than this, and hold, in many cases, that even where it appears from the terms of the contract that the parties clearly intended iit to continue longer than a year, yet if by any possibility, ag by the death of one of the parties, it may be completed within the year, it is not within the statute. Thus an agreement to educate a child, Ellicott vs. Turner, 4 Maryland, 476, and an agreement to support a child eleven years old till she is eighteen, 19 Pick, 365, have been held not within, the statute, because the child might die within the year, and thus put an- end to the agreement] And yet it is clear from the terms, that-the parties contemplated that the contracts were not to be performed within the year. And in the last case, it might admit of question whether, if the child had died within the year, it could be strictly said to have been a performance of an agreement to support her for seven years, or whether it would not rather have been a case where the performance became impossible by the act of G-od; and so the party was released. But be that as it *66may, these and 'many other cases that might be cited, go to show that the evident intent and contemplation of the parties, that the contract would not be completed in the year, do not bring it necessarily within the statute, if it possibly may be, without any violation of the ordinary course of nature.
The cases have undoubtedly gone a great ways in relieving parties from the operation of the statute. The course of decision upon this act presents the most striking example of the liberties courts have taken with positive statutes, which exists. But great excuse may be found in the inherent difficulty of establishing any exact interpretation which shall be applicable in all cases, and in the temptation to hold it inapplicable upon slight grounds, growing out of the hardship in many instances, of applying it.
There is a difference in one or two particulars between our statute and the English statute of frauds. Ours makes the agreement void; that simply provided that no action should be maintained on it. That includes agreements “ not to be” performed within a year; ours, agreements that “by the terms,” are not to be performed within a year. And we think it a sound construction to say, that in order to bring a case within this clause of our statute, the court must be able to see from its terms, that the performance is not to be completed within the year, or what is the same thing, that it cannot, in the nature of things, be done. We think this rule in harmony with the statute, and that it is much more certain in its application than that of pursuing the inquiry into the probable means and modes of performance contemplated by the parties, and then into the possibility or impossibility, according to those means and modes, of completing the contract within the year. The later rule must, in many cases, open inquiries of so vague and uncertain a character, as to make it impossible to arrive at any accurate result. Suppose a contract *67Avith an artizan to manufacture a quantity of articles personally, which, by his own labor at the .ordinary mode of working, he could not finish in a year, but by extraordinary industry he could, would it be within or without the statute? Would the party not be at liberty to be unusually industrious if he chose ? And if by being so he could complete his contract, should he be deprived of it, because at the ordinary rate he would have worked more than a year? It would seem not. And yet, an inquiry into the various decrees of diligence that might be used, and the possibilities resulting therefrom, would seem too uncertain as a practical criterion of the legality of a contract. Or, suppose a contract with a man to manufacture a quantity of articles which, with the workmen he then has, he cannot possibly finish in the year, but might by employing others, but nothing is said in the contract upon this point; shall there then be an inquiry Avhether the parties contemplated that only those then employed should work, or that others should be employed, and the contract be held good or bad accordingly ? This would seem too uncertain for practical purposes.
Applying therefore the rule above stated to this case, there Avas nothing in the terms of this contract, which showed that it Avas not to be performed in the year, nothing in its nature that showed that it could not be. It might have been impossible for the defendants to complete it with the means they then, had of working, but they might have built other mills, they might have employed other mill owners to do it for them. We think therefore the refusal to give the instruction before mentioned, Avas erroneous, and.that the judgment must be reversed for that reason.
According to many authorities, another ground might have been claimed by the defendants for holding the case not within the statute, though none of the exceptions raise the question. That is, that it appears here, that the contract was to *68be, and was fully executed on the part of the plaintiff and his partner within the year. They delivered the logs to the defendants, and had nothing to do to perform it on their part, inasmuch as the defendants were to sell the lumber and pay themselves. This has been held to take the case out of the statute. The authorities upon the point are collected in Brown on Statute of Frauds, p. 287, et seq.
In Donnellan vs. Read, 3 Barn. & Ad., 899, which is the leading case on the subject, the court say: “As to the contract not being to be performed within the year, we think that as the contract was entirely executed on one side within the year, and as it was the intention of the parties founded on a reasonable expectation that it should be so, the statute of frauds does not extend to such a case.” The doctrine does not seem to be fully settled in England, though it has been frequently approved; and it has been approved and sustained by a number of decisions in this country, and some quite recent ones. See authorities cited in Brown on Statute of Frauds, p. 290, note 4; and in addition, see Blanding vs. Sargeant, 33 N. H., 239, Compton vs. Martin, 5 Rich., 14. It was, however, questioned with considerable show of reason, in Broadwell vs. Gilman, 2 Den., 87.
There would seem to be strong reasons for holding to this rule, if it can be done upon a fair construction of the statute. For, notwithstanding the statute; men frequently trust their most important matters to verbal agreements, and where they have been so far acted on as to be entirely executed on one side, it must often cause great hardship to overturn the understanding upon which they have proceeded, and leave them afloat upon such implications as the law may furnish. On the other hand, where it is conceded that by the very terms of the agreement, it cannot be fully performed within the year by both parties, it seems to be taking considerable liberty with the language of the statute, to say that the case is not within *69it. But as this point was not raised by any exception, we shall not' decide it,
' There are also cases which hold that even where the case is within the statute, yet a party who has performed or in part performed it, cannot proceed by action to recover what he has paid or delivered, so long as the other party is willing to abide by it. Abbott vs. Draper, 4 Den., 51; Westfall vs. Parsons, 16 Barb., 649. The doctrine of these cases seems directly applicable here, because even if the case was within the statute, the plaintiff and his partner voluntarily completed the agreement on their part, and then, while' the defendants were willing to perform and insisted on their right to perform, brought this action to recover possession of the logs they had delivered. But as this question was not presented to the court below, the case could not be decided upon that ground.
The instruction asked by the defendants as to the rule of damages, was clearly improper. They would have been entitled to the profits they might have derived from sawing the logs replevied, according to the contract.
But for the reasons before stated, the judgment is reversed with costs, and a new trial awarded.