
    John Poindexter, Admr., v. Thos. T. Garnett.
    Frauds, Statute of — Contract Not to be Performed Within a Year.
    A contract by a party to build -a fence in consideration of permission by plaintiff to defendant to lay and use a iswitch on plaintiff’s land, was held not to be a contract which was not to be performed within one year.
    APPEAL PROM HARRISON CIRCUIT COURT.
    December 14, 1872.
   Opinion by

Judge Hardin :

The evidence in this case, which we regard as amply sufficient to establish the alleged agreements of Poindexter to build the fence, in consideration of the assent and permission of the appellee to the putting down and using of the switch upon his land, does not necessarily impart a promise which was not to be performed within one year, but an undertaking which ought, at least, to have been complied with when the right of way was granted; and it does not appear that it was contemplated by the parties, when they made the contract, that its performance should be deferred on either side for over one year; nor dó we think the obligation to make the fence failed for want of consideration. The privilege of using the switch carried with it, so far as was necessary and indispensable to that use, the right of ingress and egress, and Poindexter himself seems to have considered the benefit, thus secured to him a fair equivalent for his undertaking to make the fence.

A. H. Ward, for appellant.

Trimble, for appellee.

The evidence and agreed statement of facts seem to sustain the allowance made by the commissioner, and the judgment confirming it.

Therefore the judgment is affirmed.  