99 Mass. 461 | Mass. | 1868
The defendant relies upon that clause of the statute of frauds which provides that no action shall be brought “ upon any agreement that is not to be performed within one year from the making thereof,” unless the agreement or some memorandum or note thereof is in writing. Gen. Sts. c. 105, § 1, cl. 5. It is true that the statute does not cover an agreement which may be fully performed within the year, although in some contingencies it may extend beyond that period. Roberts v. Rockbottom Co. 7 Met. 46. Doyle v. Dixon, 97 Mass. 209. But an agreement which cannot be performed according to its terms within a year is within the statute, even if the act or promise which is the consideration for it may be performed within the year, or has been actually performed. Lapham v Whipple, 8 Met. 59. Marcy v. Marcy, 9 Allen, 8.
Exceptions sustained.