The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 72
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256 FEDERAL REPORTER
plaint is founded, an amendment is not objectionable which merely
states more fully and accurately the facts with reference to the con-
tract or changes the alleged date of the contract. See Stevenson v.
Mudgett, 10 N. H. 338, 34 Am. Dec. 155; Pickett v. Southern R. Co.,
74 S. C. 236, 54 S. E. 375.
 It is said, however, that plaintiff cannot recover, as the con-
tract was not in writing, as required by the statute of frauds, and that
the statute is applicable alike to the contract alleged in the original
complaint as well as to that in the amended complaint, as it is clear
that the contract could not be fully performed within one year. We
need not concern ourselves with the contract as stated in the original
complaint. The question for this court is whether the contract as
stated in the amended complaint is or is not within the statute.
The rule in England is clear that an option to determine at any time
a contract for a designated period exceeding a year has no effect in
taking the case out of the statute of frauds. Birch v. Liverpool, 9 B. &
C. 392; Dobson v. Collis, 1 H. & N. 81; Pentreguinea Fuel Co.,
Pegg's Claim, 4 De G. F. & J. 54. And see Reed on Statute of
Frauds, vol. 1, 202. But whether such an option contained in a
New York contract is within or without the statute depends upon the
construction given to the statute by the courts of that state.
In Blake v. Voight, 134 N. Y. 69, 31 N. E. 256, 30 Am. St. Rep.
622, a contract required the plaintiff to procure consignments of goods
to the defendants during one year from December 1, 1888, and that
the defendants should pay the plaintiff a commission therefor; but
it permitted either party to terminate it in June, 1889. The court
"The statute applies to 'every agreement that by its terms is not to be per-
formed within one year from the making thereof.' 4 R. S. (8th Ed.) p. 2590,
2. As it was the design of the statute not to trust the memory of the witnesses
beyond one year, it has been repeatedly held that it does not apply to a con-
tract which, consistently with its terms, may be performed within that period.
The contract in question, therefore, as we construe it, is free from the re-
straint of the statute. This conclusion finds support in the adjudged cases.
which, although uniform in this state, are somewhat at variance in other juris-
 This court will follow a decision of the New York Court of
Appeals, construing a statute of the state of New York. D'Wolf v.
Rabaud, 1 Pet. 476, 502, 7 L. Ed. 227. And as in the instant case the
contract could have been performed according to its terms within one
year by an exercise of the option at the end of 6 months, we must
hold that the contract is one not required by the New York statute
to be in writing.
It is said, finally, that the plaintiff had been paid in full for all his
services, and that on August 2, 1912, he signed a voucher check which
contained the words "In full settlement to date," and'that he rendered
no services thereafter. The plaintiff claimed that this voucher car-
ried on its face the condemnation of the construction for which the
defendant contended, as it particularly limited the amount for which
it was drawn to the particular items which it contained, and that none
of such items were within the claim of the plaintiff in this case. The
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/86/: accessed May 1, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.