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Nature of the Contracts in Tiie Section


NATURE OF THE CONTRACTS IN TIIE SECTION. The special promise to answer for the debt of another must he a promise to stand good for that which another person is primarily liable to pay. If no credit was given to the party receiving the benefit and the promisor alone is liable the promise is not within the statute and need not be in writing. (Wendell v. Hudson, 102 Ind. 521; Welsh v. Marvin, 36 Mich. 59; Morehouse v. Crangle, 36 0. St. 130.) The agreement made in consideration of marriage does not include the promise to marry, but applies to a promise to pay money or make a settlement condi tional upon a marriage taking place.

An interest in land within this section must be a substantial interest, and not arrangements preliminary to the acquisition of interest, as the cost of an abstract of title, or such a remote interest as the agreement to transfer shares in a railway company which owns land as incidental to its business. Again, "fructus indus triales," or the fruits of industry produced by the labor of men, do not constitute an interest in land, while "fructus naturales," as growing grass, timber, or fruit upon trees are considered to do so if the sale contem plates the passing of property in them before they are severed from the ground. (Anson on Cont. 61.) Of agreements not to be performed within the space of a year it is to be said that the agreement must con template non-performance within the year, and by both parties. That is, the agreement would not be within the statute if the agreement is to be fully performed by one of the parties within the year. (Donneallan v. Read, 3 B. & Ad. 899; Winters v. Cherry, i8 Mo. 35o; Smalley v. Green, 52 Ia. 241.) By judicial construc tion of the phrase "to be performed," this portion of the statute has been greatly restricted. The rule being that if the agreement by any possibility may be ful filled or completed within the year it is not within the statute, and this though it is not likely to be, or ex pected to be, performed within the year. Thus con tracts to be performed on the happening of an uncertain event, as on the death or marriage of a person, are sus tained though not in writing. (Blakeney v. Goodale, 30 Ohio St. 35o; Niagara Fire Ins. Co. v. Green, 77 Incl. 59o.) So contracts to support a person during life or to educate a child, are held not to be within the stat ute, as the person may die within the year. (Bell v. Hewitt, 24 Ind. 280; Kent v. Kent, 62 N. Y. 56o.) And a contract to restrain from doing an act or carrying on a business indefinitely are not within the statute, as the contract ends with the death of the individual, which may happen within the year. (Doyle v. Dixon, 97 Mass. 208.)

agreement, performed, statute and promise