
    (72 Hun, 458.)
    ROBERTS v. SUMMIT PARK CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    1. Statute of Frauds — Agreement not to be Performed within One Year.
    A contract giving plaintiff the agency to sell defendant’s lots limited the time of making sales to 15 months, plaintiff during that time to maintain an office to transact the business connected with the sales, to collect money due on the contracts of sale' of the lots until the price thereof should have been paid, or until termination or rescission of the contract, and the lots to be sold under written contract, in which the terms of payment should be not less than $50 cash for each lot, balance in monthly payments of not less than $10. Held, not a contract “not to be performed within one year” from its execution, within the statute of frauds, and therefore it might be modified by oral agreement.
    "5. Modification of Written Contract—Consideration.
    Where, in an action to recover commissions for sales made under an oral modification of such contract, it appeared that the modification was calculated to promote the sales of defendant’s property, an objection that there was no consideration for such- modification is untenable.
    Action by Frank K. Roberts against the Summit Park Company. A nonsuit was granted at the Erie circuit, and plaintiff moves for mew trial, on case and exceptions ordered to be heard in the first instance at general term, as provided by Code Civil Proc. § 1000.
    'Granted.
    Argued before DWIGHT, P. J., and HAIGHT, J.
    T. C. Becker, for the motion.
    A. Moot, opposed.
   DWIGHT, P. J.

The action was to recover commissions claimed by plaintiff under an alleged contract of the defendant constituting him its agent for the sale of lots; and also damages for an alleged violation and wrongful rescission of the contract by the defendant. There was a contract in writing between the parties, under which the plaintiff made some sales, but in all of these cases he received Ms commissions from the moneys paid him on sales, and he makes mo claim for any commissions earned or damages sustained by him under the contract as it was executed in writing. His claim made in this action is based, wholly, upon an alleged oral modification ¡of that contract, which was never reduced to writing. On the trial, most of the evidence offered by the plaintiff to establish such modification was excluded by the court, on the objection of the defendant that the contract was, by its terms, not to be performed within one year from its execution, and was therefore within the purview of the statute of frauds, and void so far as it was not in writing. That evidence being excluded, the plaintiff failed to establish a cause of •action, and Ms complaint was accordingly dismissed. The exception to this ruling presents the only question which requires to be considered on this appeal.

The ruling was correct if the ground of the objection was tenable, and it remains only to examine the contract, and ascertain whether "it was in fact one “that by its terms was not to be performed within one year from the making thereof.” 2 Rev. St. p. 135, § 2. It was •executed on the 14th day of October, 1871. Its first provision was in the following terms:

“The party of the first part hereby gives to the party of the second part the exclusive agency from the date hereof until January 1, 1893, for the •sale of blocks one to fifteen, inclusive, of the lands of the party of the first ,part known as ‘Summit Park,’ ” etc.

A further provision is as follows:

“The party of the second part, during the term of this contract, agrees •to maintain an office in the city of Buffalo for the transaction of business connected with the performance of this contract; to use diligence and his best efforts in effecting sales of said lands; * * * to attend to the collection of all moneys falling due upon the contracts of sale for said lots until the purchase price of the lots so sold shall have been paid, or until the termination or rescission of this contract.”

It was further provided that—

“Such lots shall be sold under written contract or deed, * * * in which contracts * * * the terms of payment for said lots shall not be less than $50 down, per lot, for lots on Main street and Summit Park avenue, and monthly payments thereon of not less than $10, with interest, and not less than $25 down, per lot, on all other lots, and monthly payments of not less than $5, with interest.”

The contract then proceeds to fix the prices, per front foot, which the lots, of various classes, shall be made to net to the Summit Park Company, and to fix the commission or compensation of the agent; and, finally, it defines certain contingencies in which the contract may be canceled, rescinded, or terminated, without full performance, before the expiration of the term named.

Can it be said of this contract that it was, by its terms, not to be performed within one year from its execution? On the contrary, we think it was the evident intent and purpose of the parties that it should be performed in as short a time as possible, and that there was nothing in the terms of the contract, any more than in the nature of the case, to prevent its being performed in less than one year. The limitation of the number of lots to be sold in a given time was to a minimum number, and, of course, it was not merely permitted, but desired, that the number should be increased as much as possible. The same is true of the terms of payment when the sales were on contract, and the agent was quite at liberty to require a larger payment down, or a larger monthly payment, or both, and thus shorten the time of collection. In short, it was very plain that this contract was not to continue in force after all the lots should be sold and the money collected; that the time limited by the contract for the accomplishment of this work was a maximum; and that, so far as the contract was concerned, it might be done in any time less than that. The amount of work to be done was strictly limited, viz. the sale of so many lots. The time within which it was to be done was limited only by a maximum, and it might be done in as much shorter time as the diligence, the best efforts, and the good fortune of the plaintiff should prove to be sufficient. The conclusion that such a contract is not within the provision of the statute of frauds which we have been considering is, we believe, supported by all the authorities. It is only contracts which either, by express provision, are not to be, or, by necessary implication, are not intended to be, performed within a year, that are required by the statute to be in writing. In other words, the contract must be one which by its terms shows that the parties intended that it should not be completed within the year. Boydell v. Drummond, 11 East, 142; Doyle v. Dixon, 97 Mass. 208; Drake v. Seaman, 97 N. Y. 230; Kellogg v. Clark, 23 Hun, 393; Day v. Railroad Co., 22 Hun, 412; Bartlett v. Wheeler, 44 Barb. 162. It is very clear that no such intention was entertained by the parties to the contract in this case; but, on the contrary, that while, by the terms of this contract, performance might be extended over a period of nearly 15 months, yet that complete performance within, any shorter period was consistent with all the provisions of the-contract. Such being the case, we are not required to consider the question, upon which there is some conflict of authority, of the effect of the provisions of this contract for a termination or rescission of the contract by the act or at the option of one of the parties.

The objection made on -the argument here, that the alleged modification of the contract, relied upon by the plaintiff, was without consideration, seems not to be well taken, because that modification, so far as disclosed by the evidence which was received, or-which was offered by the plaintiff, was calculated to promote the-sale of lots, and was therefore for the common benefit of both-parties to the contract. We conclude that the plaintiff’s exceptions-to the exclusion of the evidence referred to, and to the granting of a nonsuit, must be allowed, and his motion for a new trial granted.

Plaintiff’s motion for a new trial granted, with costs to abide the-event.  