(dissenting).
[¶ 34.] The majority opinion and special writing clearly establish that the agreement between Feterl Manufacturing Company and its successors and Harriman was within the statute of frauds because it could not be performed within one year. However, neither writing can see the for*52est for the trees and permits the statute of frauds to produce a fraud upon Harriman.
[¶ 35.] The defect in both writings is that they ignore the agreement and the facts, being blinded as they are by the technicalities of the statute of frauds. The facts are that: Harriman and Feterl Manufacturing Company operated for years under the agreement that the writings ignore. As documented by Feterl Manufacturing Company’s treasurer, Darrell Streflf, the agreement was set forth in Exhibit 15, a copy of which is attached. The agreement speaks for itself and was subscribed by the party to be charged, and is binding on its successors.
[¶ 36.] In addition, every paycheck ever written by Feterl Manufacturing Company and its successors was a document or agreement in writing, signed by the party to be charged. Incredibly, the trial court was correct in all of its rulings except on this same point:
In light of my ruling on the statute of frauds issue it is not absolutely necessary that I address the other issues raised by the Defendant [(UDI)], but anticipating a Supreme Court review of this case along with a possible notice of review submitted by the Defendants I will briefly address those issues and initially indicate that I would deny Defendant’s position as to the other six claimed reasons.
(emphasis added). We must look at the trees to see the forest. We must not be blinded by the technicalities of the statute of frauds, and permit them to produce a fraud. See Jacobson v. Gulbransen, 2001 SD 33, ¶ 26, 623 N.W.2d 84, 90 (“The statute of frauds will not, however, be used to work an injustice.”). We need to simply review the facts for what they are.
[¶ 37.] The facts speak for themselves and clearly show that the agreement was substantially performed year after year after year. Every paycheck ever written by Feterl Manufacturing Company and its successors was a document or agreement “in writing and subscribed by the party to be charged.” SDCL 53-8-2. Therefore, the statute of frauds was complied with in every way and it was error to vacate the judgment in favor of Harriman for $586,359 in damages and $121,240 in future damages. We should reverse and remand and require reinstatement.
*53[[Image here]]