460 HARVARD LAW REVFEW, difference between the two cases is there but one of degree, and is it not true that the danger of false swearing is increased in propor- tion as the period of proving a contract by parol evidence becomes more remote? The better doctrine would seem to be the one tersely stated in Broadwell v. Getman.^ ** An agreement is an entire thing, and where it cannot be completely executed on both sides until more than a year has elapsed, the case falls within the express words of the enactment. It is also within its spirit, for the mischief meant to be prevented by the statute was the leaving to memory the terms of a contract for a longer time than a year." And the true doctrine must be that an agreement, the whole of which cannot within a year be performed according to its terms, is within the statute, even if the act or promise, which is the consideration for the defendant's undertaking; maybe or has been actually performed within the year.^ The statute does not refer to agreements neither side of which can be performed within a year, so that the force of a learned commentator's distinction is not apparent when he says that, " in all the cases where the agreement has been held to be within the statute, the action was for the breach of that side of the contract that was not to be performed within the year." ^ This seems like an undue concern to vindicate the opinions of some of the courts ; for except in the case of unilateral agreements (where the words " promise " and " agreement " are synonymous) this dis- tinction appears to confuse the word " agreement," which is used in the statute, with " promise," which is only one side of the agreement. The distinction would of course be sound if the statute referred to "promises" not to be performed, etc., instead of " agreements." And whether the obligation rest upon an executed or an executory consideration, the danger of allowing its terms to be proved by parol evidence at remote periods is precisely the same. These various refinements, distinctions, and exceptions also sorely puzzle the minds of other commentators, and when they endeavor to arrange the rules in an orderly system, they are led to strange incongruities. Thus, for instance. Reed, in his Treatise on the Statute, after commenting despairingly on the conflict of authority and lapse from principle, sums up with the statement that "The preponderance of American authority cannot be easily 1 II Denio, 88. 8 Browne on Statute of Frauds, p. 352. 2 Lapham z/. Whipple, 8 Met. 59.
