See Warner v. Texas, etc., R. Co., 164 U. S. 418, where the law is thus laid down as stated in the headnote: "The clause of the Statute of Frauds which requires a memorandum in writing of 'any agreement not to be performed within the space of one year from the making thereof,' applies only to agreements which, according to the intention of the parties, as shown by the terms of their contract, cannot be fully performed within a year, and not to an agreement which may be fully performed within the year, although the time of performance is uncertain, and may probably extend, and may have been expected by the parties to extend, and does in fact extend, beyond the year." Clark, 78-9 and notes.
The agreement in Warner v. Texas, etc., R. Co., supra, was that if Warner would grade the ground for a switch, and put on the ties at a certain point on the railroad, the railroad company would put down the rails, and maintain the switch for Warner's benefit, for shipping purposes, as long as he needed it.
The court said (p. 434): "If within a year after the making of the contract, the plaintiff had died, or had abandoned his whole business at this place, or for any other reason had ceased to need the switch for the shipping of lumber, the railroad company would have been no longer under any obligation to maintain the switch, and the contract would have been brought to an end by having been fully performed." See in accord Richmond, etc., R. Co. v. Richmond, etc., R. Co., 96 Va. 670.
The case of Warner v. Texas, etc., R. Co. criticises, and virtually overrules, the case of Packet Co. v. Sickles, 5 Wall. 580 (cited in Clark, 79, n. 60), where the Packet Company agreed to attach a patented contrivance, known as "the Sickles cut-off," to one of its steamboats, and, if it should effect a saving in the consumption of fuel, to use it on that boat "during the continuance of the patent [12 years], if the boat should last so long;" and it was held that the agreement was within the Statute of Frauds on the grounds that it was a "contract not to be performed within the year, subject to a defeasance by the happening of a certain event [the destruction of the boat] which might not occur within that time." But in the Warner Case, the construction of the language in the Sickles Case is declared to be, not for 12 years, subject to defeasance on the destruction of