
    JOHN FALLON vs. THE CHRONICLE PUBLISHING COMPANY.
    At Law.
    No. 11072.
    The plaintiff, who is a newspaper-carrier, alleges that a former proprietor of the Daily Morning Chronicle agreed to give him the exclusive right to sell and deliver that paper ora certain route in Washington; that such owner sold out to another person, and that defendant has succeeded to the ownership of the paper, and that he renewed the contract with both. He alleges performance, hut claims that defendant broke the contract by refusing to deliver to him any more papers. Held, that the plaintiff could not maintain an action on said contract, for the reason that it is void for uncertainty and want of mutuality • also for the reason that it is not alleged to he in writing- or to he performed within a year, and is therefore void, within the 4th .section of the statute of frauds.
    STATEMENT OR THE CASE.
    This is an action for $6,000 damages for breach of contracts. The declaration contains three counts:
    I. The plaintiff says that John W. Forney, former proprietor of the Daily Morning Chronicle, agreed with the plaintiff to give him the exclusive right to sell and deliver the Daily Chronicle on a certain route in Washington City, in consideration of $250, and the further consideration that the plaintiff would faithfully deliver the same, and solicit subscribers therefor; said Forney to furnish as many papers as plaintiff might require for a reasonable compensation, and plaintiff to receive from subscribers a reasonable advance price therefor, said contract to continue as long as plaintiff should faithfully perform his part thereof.
    That on January 3, 1S71, said Forney sold said paper to John M. Morris; and on June 16, 1871, the defendant was incorporated by act of Congress, and succeeded to the ownership of said paper; and said contract was renewed by the plaintiff with both said Morris and the defendant.
    That the plaintiff always performed his part of said contract faithfully; but since July 1, 1873, the defendant broke the contract, by refusing to deliver him any papers, and by delivering directly to the subscribers.
    II. The second count is substantially the same as the first, except it alleges the contract was made directly with the defendant on the 16th June, 1871.
    III. The third count states another similar contract and like breach thereof for another route, made December 9, 1872-
    To this declaration the defendant demurs:
    1st. Because the alleged contract is void for uncertainty and want of mutuality.
    2d. Because said contract is not alleged to be in writing, and shows a contract not to be performed within the year, and is void under statute of frauds.
    3d. Because said contract is in restraint of trade, and is therefore void as being against public policy.
    4th. Because neither of tbe three counts allege the damage suffered for the separate and specific injury complained of.
    And the defendant demurs specially to the 1st count of the declaration:
    1st. Because it does not state when the contract between plaintiff and John W. Forney was entered into.
    The plaintiff joins in the demurrers.
    The circuit court sustained the demurrers to the declaration, and the plaintiff appealed.
    
      Enoch Totten, for the plaintiff, insists:
    First. The demurrer was sustained below on the ground that the contract declared upon was within the statute of frauds, and therefore void, because by the terms thereof it “ was not to be performed in one year.”
    The agreement set out in the declaration does not fall within the statute. Brown on the Statute of Frauds, secs.. 276, 278, 279, and 282.
    Second. The contract set forth in the declaration is good and is well pleaded. 1 Chitty’s Pleadings, 297.
    
      W. Penn Clarke and William A. Cook, for defendants, argued the following points:
    1. The contract, as alleged in the declaration, is void for uncertainty and uiant of mutuality.
    
    
      The adjudicated cases on this question are numerous and uniform. Among the earliest is that of Lees vs. Whitcomb, 5 Bingham, 34, where it was held that a written agreement “ to remain with A B two years for the purpose of learning a trade,” is not binding for want of reciprocity — namely, an engagement in the same instrument on the part of A B to teach. This is, in fact, the leading case. So, in Sykes vs. Dixon, 1 P. and D., 463, an agreement by A to work only for B, without an engagement by B to employ A, was held not binding. And to the same purpose are the following cases: Bates vs. Cost, 3 D. and R., 676; Livingston vs. Rogers, 1 Caines, 583; Tucker vs. Woods, 12 Johns., 190; Keep vs. Goodrich, 12 Ib., 397; Townsend vs. Fisher, 2 Hilton, 47; Ballingall vs. Bradley, 16 Ill., 373; Sims vs. McEwen, 27 Ala., 461; Nounenbaker vs. Hooper, 4 E. D. Smith, 401. And in Livingston vs. Rogers, 1 Caines, 583, it was expressly decided that mutual promises, to be binding, must be concurrent and obligatory on both parties at the same time.
    
    2. The contract alleged, not being in writing, shows a contract not to be performed within the year, and is void under the statute of frauds.
    
    The earliest and leading case on this subject is the well-known one of Boydell vs. Drummond, 11 East., 142, in which it was held that a parol agreement to become a subscriber to the Boydell Shakspeare, which was jpublished in numbers, which undertaking, in the contemplation of the parties, could not be performed or brought to a close for several years, was within the statute of frauds, and was, therefore, void. In another case, Birch vs. The Earl of Liverpool, 9 B. and C., 392, a contract whereby a coachmaker agreed to let a carriage for a term of five years, in consideration of receiving an annual payment for the use of it, but which, by the custom of the trade, was determinable at any time within that period upon the payment of a year’s hire, was an agreement to be performed within a year, and came within the prohibition of the statute. So in Bracegirdle vs. Heald, 1 B. & A., 722, an agreement for a year’s service, to commence at a subsequent day, being a contract not to be performed within the year from the time of the agreement, must be in writing, and, therefore, no action could be maintained for the breach of a verbal contract made on the 27th day of May, for a year’s service, to commence on the 30th of June following.
    Modern cases are consistent with these early decisions, giving a construction to the fourth section of the statute of frauds, and without going into them at length, we refer to the following: Hinkey vs. Southgate, 11 Vermont, 428; Foote vs. Emmerson, 10 Ib., 338; Drummond vs. Burrell, 13 Wend., 307; Squire vs. Whipple, 1 Vermont, 69; Cabot vs. Hashins, 3 Pick., 83; Derby vs. Phelps, 2 N. Hamp., 515; Wilson vs. Bay, 13 Indiana, 1; Shute vs. Daw, 5 Wend., 204; Sower vs. Winters, 7 Cowen, 263; Hill vs. Hooper, 1 Gray, 131.
    And the fact that the contract has been performed in part will not take the case out of the purview of the statute. Otherwise, if it has been fully performed. Upon this point see Henin vs. Butlers, 2 App., 119; Baldwin vs. Palmer, 6 Seld., 232; Pierce vs. Payne, 2 Wms., (28 Vermont,) 34; Browne on Stat., of Frauds, 448.
    Nor need the statute of frauds be pleaded where it appears from the record that the contract relied upon comes within its provisions. Amburger vs. Marvin, 4 E. D. Smith, 393; Smith vs. Fah, 15 B. Monroe, 443; Osborne vs. Endicott, 6 Cal., 149; Thurman vs. Stevens, 2 Duer., 609.
   Cartter, Ch. J.,

delivered the opinion of the court:

The judgment of the circuit court must be affirmed in this case for two reasons:

1. For want of mutuality in the contracts sued upon.

2. Because the contracts come within the fourth section of the statute of frauds, requiring contracts not to be performed-within a year to be in writing.

Judgment affirmed.  