Shaw, C. J.

The first question is, whether the contract of the plaintiff, as set forth in the case, was void by the statute of frauds, in consequence of not being in writing. The contract between the plaintiff and the company was, that they should employ him, and that he should serve them upon the terms agreed on, five years, or so long as Leforest should con tinue their agent. This is a contract which might have been fully performed within the year. The legal effect is the same as if it were expressed as an agreement to serve the company so long as Leforest should continue to be their agent, not exceeding five years; though the latter expression shows a little more clearly, that the contract might end within a year, if Leforest should quit the agency within that time. We think it now settled by recent cases, that where the contract may, by its terms, be fully performed within the year, it is not void by the statute of frauds, although, in some contingencies, it may extend beyond a year. Kent v. Kent, 18 Pick. 569. Peters v. Westborough, 19 Pick. 364. Blake v. Cole, 22 Pick. 97. Wells v. Horton, 4 Bing. 40. The judge of the court of common pleas having ultimately instructed the jury that the contract was void by the statute, though in an earlier stage of the cause he had instructed them differently, the court are of opinion that the verdict must be set aside, and a new trial granted.

*49The plaintiff has made a motion, grounded on the facts stated in the report, in regard to the first return of the verdict, by the jury, that the court will now enter judgment, on that first verdict for the plaintiff. This appears to us to be founded on a mistaken view of the legal effect of the paper thus returned by the jury. In truth, it was not a verdict, because it was not affirmed by the jury nor recorded by the court.* It was the verdict which they proposed to render, under the instruction which the judge had given them, that the plaintiff’s contract was not void by the statute. But before the verdict was 'affirmed, the judge instructed them differently, and they then properly returned a verdict for the defendants, on the second count. But it is urged that the judge directed the jury to change their verdict on this count, and that this he had no authority to do Perhaps, in that precise form, he had not. But he had authority, at any time before verdict affirmed and recorded, to vary his instruction to the jury, in matter of law, and the jury were in duty bound to be governed by it. The instruction that by the statute of frauds, the contract, as set forth and relied upon by the plaintiff, was void, and would not support an action, was purely matter of law, and was absolutely decisive, and required them to find a verdict for the defendants. The result, therefore, is the only one to which the jury could come, under this instruction of the court, on the application of the statute of frauds to the plaintiff’s case.

But if there was any irregularity in this form of directing the jury, the only mode in which it can now be remedied is by a new trial. We cannot say that the jury, if called upon, would have affirmed that first paper returned and offered by them, as their verdict; and we know by the record and the exceptions, that it was not accepted and recorded. It cannot, therefore, now be the foundation of a judgment.

Verdict set aside, and a new trial ordered.

See Bac. Ab. Verdict, G. Blackley v. Sheldon, 7 Johns. 32. Walters v. Junkins, 16 S. & R. 415. Goodwin v. Appleton, 9 Shepley, 458. Howe’s Pract. 257.