Page:Harvard Law Review Volume 9.djvu/489

JUDICIAL REPEAL OF THE STATUTE OF FRAUDS. 46 1 ascertained. It probably leans to the view that denies to anything less than complete execution of both sides of the agreement the effect of satisfying the statute." It occurs to one, however, to inquire how any question can arise under the statute, that is to say, how any question can arise in a practical form in a judicial proceeding, when both sides of the agi eement have been performed. Nevertheless, it is the fact that there have been such cases involv- ing the question, and the apparent paradox disappears. In Adams v. Fitzpatrick,^ it was fairly held that a contract, originally void under the Statute of Frauds, becomes valid upon performance. Plaintiff had contracted to enter defendant's employ for a period in excess of a year at a certain yearly salary. The contract was oral, but fully performed on both sides. Thereafter plaintiff continued in the employ of the defendant without any con- tract, for a period less than a year after the expiration of the original term, and until he was discharged. The court held that by the acquiescence of the parties, and by implication of law, the contract was to be deemed renewed for one year on the same terms as the oral contract, which, it was conceded, was within the pro- hibition of the statute. Says the court, " It is true that the original contract, so long as it remained executory, was void and unenforceable; but having been voluntarily performed by both parties, neither could afterwards be heard to allege its invalidity, and it controlled the terms of service and compensation under it as against both parties, as well as afforded an authority from which the intention of the parties in relation to a further contract could be inferred. In other words, after execution, it was to all intents valid." The same conclusion was arrived at in Tatterson v. Suffolk Manufacturing Co. ,2 where the court says that, " The terms of the contract, in the absence of express words, are to be ascertained not alone by what occurred within the year, but also from all that had transpired previously." ^ And here, again, we find the courts forgetting the salutary reminder of Lord Holt, that the design of the statute was not to trust the memory of witnesses beyond one year, for the plaintiff is not restricted to showing what happened during the year of per- formance, but is permitted to show the terms of the original oral agreement, which will have been made more than a year before evidence of its terms can possibly be offered. 1 26 N. E. Rep. 143. 2 J 06 Mass. 56. ' Sines v. Superintendents o^ the Poor, 58 Mich. 503 (Ace).