CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY TERM, 1859, IN THE FORTY-THIRD WILSON V. RAY.* The contract stated in the pleadings in this case (see the opinion) is executory. Where no time is fixed for the performance of a contract; or where it is to be performed by a certain day (the right to perform it sooner not being precluded); or where the performance depends upon a contingency which may or may not happen within a year, the contract is not within § 1 of the statute of frauds. R. S. 1843, p. 589.-1 R. S. p. 299. But where, by its terms, a contract is not to be performed within the year; or where it cannot be performed within the year, according to the intent and understanding of the parties, as evidenced by the contract, it is within the statute. Where the agreement of the defendant upon which suit is brought, is not, in any event, to be performed within a year, it is within the statute, although there may be other stipulations providing for contingencies that would make the plaintiff liable to the defendant within a year, and release the defendant altogether. A promise to pay money after the expiration of a year, is as much within the statute as a promise to do any other act. *The petition for a rehearing in this case was filed on the 21st of July, and overruled on the 10th of November. VOL. XIII.—1 13 1 127 518 May Term, Although a contract may be performed on one side within a year, yet if it cannot on the other, it is within the statute. 1859. WILSON V. RAY. Tuesday, Contracts of partnership are as much within the statute as other contracts. APPEAL from the Marion Circuit Court. WORDEN, J.-Complaint by Wilson against Ray "that on or about the first day of June, 1852, the plaintiff and one Lawrence M. Vance were engaged to perform a large amount of work, and to furnish a large amount of materials for the construction of what is known as the Indianapolis and Cincinnati railroad, in the doing of which work, and the furnishing of which materials, and in order to pay workmen, and furnishers for the same, it became necessary that, in the progress thereof, the plaintiff should raise a large sum of money, to-wit, 300,000 dollars. The plaintiff further says that by the contract for said work and materials with the company to whom said road belonged, they, the plaintiff and said Vance, were to receive the greater portion of their pay for said work and materials in the bonds of said company at 75 cents on the dollar, and did receive therefor, of said bonds, to the amount of 350,000 dollars nominally. The plaintiff further says, that in order to raise the money first aforesaid, it became necessary to borrow the same by the creation of commercial paper, from time to time, as the same might be needed, with good indorsers, in view of which necessity the said Vance procured one Hervey Bates as his indorser, acceptor, and drawer of said commercial paper, on terms then agreed on between them; and the plaintiff, in order to procure an acceptor, drawer, and indorser also as aforesaid, then and there entered into the following agreement with the defendant: The plaintiff then and there promised the defendant that if the defendant would draw, accept, and indorse said commercial paper as the same might be, from time to time, needed, along with said Bates, the plaintiff would pay to said defendant one-half of the amount which the plaintiff should realize on the said bonds over and above 75 cents on each dollar of said bonds, provided that if, on said bonds, he should not realize 75 cents to the dollar, on disposal of them, the defendant would pay to the plaintiff one-half of the loss sustained by the plaintiff by reason of such disposal of them under 75 cents on the dollar; and the defendant, then and there, in consideration of said promise by the plaintiff, promised to him to draw, accept, and indorse for him as aforesaid, and to pay the plaintiff a sum of money equal to one-half of his loss on said bonds, if on the same he should realize less than 75 cents on the dollar. And the plaintiff says that the defendant did so draw, accept, and indorse for him as aforesaid. And he avers that, of said 350,000 dollars of bonds of said company, one-half, to-wit, 175,000 dollars thereof, was then and there, and until the same was disposed of as hereinafter mentioned, the property of and share falling to the plaintiff. The plaintiff further says that said bonds could not be and were not sold, or in any manner disposed of at a rate equal to 75 cents on the dollar, but on the contrary they were, with the defendant's knowledge and consent, disposed of afterwards at much less than 75 cents on the dollar, to-wit, at 60 cents on the dollar, and that the plaintiff's loss on such disposal thereof was, and is, 25,000 dollars; of all of which the defendant then and there had notice; wherefore," &c. To this complaint the defendant answered, amongst other things, as follows, viz.: "That the said supposed agreement upon which this suit is brought was made and entered into on the 15th day of June, 1852; and that said contract between The Indianapolis and Cincinnati Railroad Company and said plaintiff and said Vance, under which the said bonds named in the complaint were to be issued and paid to said plaintiff and Vance, was entered into on the 31st day of January, 1852, whereby they, the said plaintiff and said Vance, were to complete the work embraced in their said contract, and fully comply with their part of said contract by the first of October, 1853, and that according to the terms and stipulations of the last-named contract, as well as by the terms and stipulations and recitals of the first May Term, 1859. WILSON V. RAY. WILSON V. RAY. May Term, named agreement, the said plaintiff and the said Vance 1859. bound and obliged themselves to hold the said bonds, and to keep them out of the money market, and not to sell or finally dispose of them for the whole period of, and until the expiration of sixteen months from the first day of April, 1852, and that the said railroad company should have the right, and could, by giving thirty days' notice to the said Vance and Wilson, receive back from them the whole or any part of said bonds, by paying in money therefor 85 cents on the dollar at the city of New York; provided, however, that such demand to redeem said bonds should be made within sixteen months from the first day of April, 1852, and provided also that said Vance and Wilson should have the right, when such demand was made, to take and receive stock in said company, at par, for the full amount and face of said bonds, which bonds were to be paid to said Vance and said plaintiff by The Indianapolis and Cincinnati Railroad Company, within ten days after notice in writing from the engineer in charge of the line that the work contemplated in said contract had been fully completed; and the said plaintiff and said Vance, in and by the agreement first herein above mentioned, further agreed with the said Bates and said defendant that there should be a mutual and equal dividend between the said plaintiff, said Vance, said Bates, and said defendant, either of advance or loss on said bonds so to be received of said company under their said contract with said company, in the final disposal of said bonds, which disposal should be only made under the concurrent disposal of each of said parties. And the defendant says that the said supposed agreement and promise of said defendant upon which this suit is brought was not by its terms to be performed within one year from the time of making the same, and could not be performed within one year; and the defendant avers that the said supposed agreement was not in writing signed by the defendant, nor by any person by him lawfully authorized, and so the defendant says that said agreement was and is void." To this paragraph the plaintiff demurred, assigning for |