BASTIAN, Circuit Judge.
Appellant [plaintiff] filed this action for breach of contract for personal services and damages resulting therefrom. The complaint alleges that on September 30, 1956, appellant discussed with ap-pellee Orsinger, in the presence of witnesses, the terms of the contract. Appellant was to assume the duties of resident manager of an apartment development [576]*576operated by TyJer Gardens Incorporated, of which corporation Orsinger is president, for which services appellant was to receive $75.00 per week in addition to a rent-free apartment for the duration of the contract. This proposed agreement was to continue “until the plaintiff [appellant] completed his law studies as a student duly matriculated in Georgetown University Law Center, Washington, D. C. or was obliged to discontinue these studies.” This agreement was confirmed orally the following day' in the offices of appellees. On October 12, 1956, appellant assumed his duties as resident manager. On November 17, 1956, he received a letter1 terminating the contract, and this termination was confirmed by Orsinger in an oral conference on December 1, 1956.
Orsinger, in his answer to the complaint, denied having entered into any contract on his own behalf but admitted that there was an oral contract with Tyler Gardens, whose agent he claimed to be in the making of the contract. He denied, however, that the contract was to last for any definite period alleging that it was terminable at the will of either party. Tyler Gardens admitted entering into a contract of employment with appellant but denied that it was to last for any stated period of time, claiming that it was terminable at the will of either party. Among other defenses, including the charge that appellant was properly discharged, appellees urged the defense of the statute of frauds. After the taking of appellant’s deposition, ap-pellees filed a motion for summary judgment (Fed.R.Civ.P. 56, 28 U.S.C.A.), which the court granted. This appeal followed.
Appellant’s complaint and his deposition, construed most favorably for appellant (as they must be in this posture of the case), present no genuine issue of fact to be tried by a jury. Assuming, as we must, the truth of all his allegations, the suit is barred by the statute of frauds. The pertinent parts of the statute read as follows:
Title 12, D.C.Code, § 802 (1951): “No action shall be brought whereby to charge * * * any person upon any agreement * * * that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, which need not state the consideration, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.” [Emphasis supplied]
Appellant contends that the statute of frauds is not applicable to his alleged contract of employment with appellees since it could be performed within a year. This would result, it is contended, if appellant were obliged to discontinue his law studies because of “deficient scholarship or for some similar reason,” 2 a contingency which could occur within a year.
[577]*577That contingency contemplates an annulment of the terms of the contract and would operate as a defeasance, thereby terminating and discharging the contract. Further performance under the contract would be impossible by either party. This annulment or defeasance provision does not contemplate the performance of the contract but only its termination and cancellation. Although it could be annulled within a year, it was none the less a personal service contract to last for more than a year, e. g., until appellant completed his studies at Georgetown University Law School. Although this annulment or defeasance provision relieves the parties from further performance of the contract, it is not the type of performance that is necessary to take the case out of the operation of the statute.
The court, in Blue Valley Creamery Co. v. Consolidated Products Co., 8 Cir., 1936, 81 F.2d 182, 185, spoke very clearly on this issue:
“ * * * The statute looks to the performance and not the defeat of the contract, and a defeasance within a year would not constitute a performance according to the express intent of the parties, that performance should continue longer than a year.
“It is generally held that a contract for a definite period extending over a year is not taken out of the statute by an option allowing either party to terminate it within a year. The performance contemplated by the statute is a full and complete performance, and a cancellation is not such a performance. [Citing cases]
“Much of the confusion in considering the applicability of the statute apparently arises from failing to keep in mind the distinction between a contingency of such a nature as fulfills the obligation and one that defeats or prevents it from being performed. The one that depends upon the defeasance or matter of avoidance is within the statute, while the other is not.” [Emphasis supplied]
In Union Car Advertising Co. v. Boston Elevated Ry. Co., 1 Cir., 1928, 26 F.2d 755, 58 A.L.R. 1007, the court held that the fact that a contract may be terminated, or further performance rendered impossible, within the period of one year, does not take it out of the statute where the obligation is one which cannot be performed within the year; that discharge from liability under a contract is not performance thereof. Citing, among others, Street v. Maddux, Marshall, Moss & Mallory, infra, and Williston on Contracts, §§ 495, 496, 497, 498, 499, 500.
Street v. Maddux, Marshall, Moss & Mallory, 1928, 58 App.D.C. 42, 24 F.2d 617,3 is authority for the proposition that a parol contract requiring three years for its performance is none the less a contract within the statute of frauds because it provides for annulment within a year, since annulment of a contract and its performance are distinctly different conceptions. There the owner of an apartment house in the District of Columbia sued on a verbal contract whereby he assigned the rents of that apartment to the defendant and authorized the defendant to pay itself a commission on the rents, in exchange for financial assistance required to prevent foreclosure. The agreement was to run for a period of three years unless the plaintiff sold the property during that period, in which event the agreement was to cease. Plaintiff sued because it was claimed that defendant failed to prevent the foreclosure. The defense was the statute of frauds.
On appeal, this court affirmed a judgment for the defendant, holding that the statute barred recovery. We held that it was apparent from the parol contract that the parties did not contemplate ¿ts performance within a year after it was [578]
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BASTIAN, Circuit Judge.
Appellant [plaintiff] filed this action for breach of contract for personal services and damages resulting therefrom. The complaint alleges that on September 30, 1956, appellant discussed with ap-pellee Orsinger, in the presence of witnesses, the terms of the contract. Appellant was to assume the duties of resident manager of an apartment development [576]*576operated by TyJer Gardens Incorporated, of which corporation Orsinger is president, for which services appellant was to receive $75.00 per week in addition to a rent-free apartment for the duration of the contract. This proposed agreement was to continue “until the plaintiff [appellant] completed his law studies as a student duly matriculated in Georgetown University Law Center, Washington, D. C. or was obliged to discontinue these studies.” This agreement was confirmed orally the following day' in the offices of appellees. On October 12, 1956, appellant assumed his duties as resident manager. On November 17, 1956, he received a letter1 terminating the contract, and this termination was confirmed by Orsinger in an oral conference on December 1, 1956.
Orsinger, in his answer to the complaint, denied having entered into any contract on his own behalf but admitted that there was an oral contract with Tyler Gardens, whose agent he claimed to be in the making of the contract. He denied, however, that the contract was to last for any definite period alleging that it was terminable at the will of either party. Tyler Gardens admitted entering into a contract of employment with appellant but denied that it was to last for any stated period of time, claiming that it was terminable at the will of either party. Among other defenses, including the charge that appellant was properly discharged, appellees urged the defense of the statute of frauds. After the taking of appellant’s deposition, ap-pellees filed a motion for summary judgment (Fed.R.Civ.P. 56, 28 U.S.C.A.), which the court granted. This appeal followed.
Appellant’s complaint and his deposition, construed most favorably for appellant (as they must be in this posture of the case), present no genuine issue of fact to be tried by a jury. Assuming, as we must, the truth of all his allegations, the suit is barred by the statute of frauds. The pertinent parts of the statute read as follows:
Title 12, D.C.Code, § 802 (1951): “No action shall be brought whereby to charge * * * any person upon any agreement * * * that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, which need not state the consideration, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.” [Emphasis supplied]
Appellant contends that the statute of frauds is not applicable to his alleged contract of employment with appellees since it could be performed within a year. This would result, it is contended, if appellant were obliged to discontinue his law studies because of “deficient scholarship or for some similar reason,” 2 a contingency which could occur within a year.
[577]*577That contingency contemplates an annulment of the terms of the contract and would operate as a defeasance, thereby terminating and discharging the contract. Further performance under the contract would be impossible by either party. This annulment or defeasance provision does not contemplate the performance of the contract but only its termination and cancellation. Although it could be annulled within a year, it was none the less a personal service contract to last for more than a year, e. g., until appellant completed his studies at Georgetown University Law School. Although this annulment or defeasance provision relieves the parties from further performance of the contract, it is not the type of performance that is necessary to take the case out of the operation of the statute.
The court, in Blue Valley Creamery Co. v. Consolidated Products Co., 8 Cir., 1936, 81 F.2d 182, 185, spoke very clearly on this issue:
“ * * * The statute looks to the performance and not the defeat of the contract, and a defeasance within a year would not constitute a performance according to the express intent of the parties, that performance should continue longer than a year.
“It is generally held that a contract for a definite period extending over a year is not taken out of the statute by an option allowing either party to terminate it within a year. The performance contemplated by the statute is a full and complete performance, and a cancellation is not such a performance. [Citing cases]
“Much of the confusion in considering the applicability of the statute apparently arises from failing to keep in mind the distinction between a contingency of such a nature as fulfills the obligation and one that defeats or prevents it from being performed. The one that depends upon the defeasance or matter of avoidance is within the statute, while the other is not.” [Emphasis supplied]
In Union Car Advertising Co. v. Boston Elevated Ry. Co., 1 Cir., 1928, 26 F.2d 755, 58 A.L.R. 1007, the court held that the fact that a contract may be terminated, or further performance rendered impossible, within the period of one year, does not take it out of the statute where the obligation is one which cannot be performed within the year; that discharge from liability under a contract is not performance thereof. Citing, among others, Street v. Maddux, Marshall, Moss & Mallory, infra, and Williston on Contracts, §§ 495, 496, 497, 498, 499, 500.
Street v. Maddux, Marshall, Moss & Mallory, 1928, 58 App.D.C. 42, 24 F.2d 617,3 is authority for the proposition that a parol contract requiring three years for its performance is none the less a contract within the statute of frauds because it provides for annulment within a year, since annulment of a contract and its performance are distinctly different conceptions. There the owner of an apartment house in the District of Columbia sued on a verbal contract whereby he assigned the rents of that apartment to the defendant and authorized the defendant to pay itself a commission on the rents, in exchange for financial assistance required to prevent foreclosure. The agreement was to run for a period of three years unless the plaintiff sold the property during that period, in which event the agreement was to cease. Plaintiff sued because it was claimed that defendant failed to prevent the foreclosure. The defense was the statute of frauds.
On appeal, this court affirmed a judgment for the defendant, holding that the statute barred recovery. We held that it was apparent from the parol contract that the parties did not contemplate ¿ts performance within a year after it was [578]*578made, and that the fact that it should immediately cease and be of no effect if the plaintiff sold the property prior to the expiration of the year period contemplated annulment and not the performance of the contract.
We therefore held that the annulment of a contract and its performance are distinctly different conceptions and that, although the parol contract in issue might be annulled within a year, it was none the less a contract the performance of which required three years. The court stated:
“In Warner v. Texas & Pacific Railway, 164 U.S. 418, 434, 17 S.Ct. 147, 153 (41 L.Ed. 495), upon which appellant relies, the correct rule was laid down for determining whether or not a parol contract was within the statute of frauds when the court said: ‘The question is not what the probable, or expected, or actual performance of the contract was; but whether the contract, according to the reasonable interpretation of its terms, required that it should not be performed within the year.’ (Emphasis by this court)”. 58 App.D.C. at page 44, 24 F.2d at page 619.
The courts thus recognize a distinct difference between a contingency which fulfills the terms of a contract and one which prevents fulfillment. If the contingency which fulfills and completes the terms of the contract happens or could possibly happen within a year, the contract is not within the statute. On the other hand, if the contingency prevents or discharges the parties from performing their obligations under the contract within a year, then the contract is within the statute.
Here, on the present state of the record, there is an oral contract for personal services for a period exceeding one year but subject to annulment which might occur within a year. This in no way helps to further the performance of the contract but rather serves to defeat it, rendering performance impossible, and thus bringing the contract within the statute.
It seems clear, taking appellant’s version of the contract, that it would be impossible to perform the terms of the contract within the space of one year, since appellant had just started law school that fall (September 1956) and would not complete his studies before some time in 1959 at the earliest.
We see no force in the argument that defeasance should be restricted to an act of one of the parties, and this argument is not borne out by the authorities. But even if it were so, the defeasance here would be the result of appellant’s act— voluntary or otherwise. The defeasance would occur if he should be obliged to discontinue his law studies because of poor or deficient scholarship, or for some similar reason.
We find it unnecessary to pass on other objections urged by appellees against the contract, although they seem to have merit. The contract certainly seems so vague and uncertain as to be unenforceable; and, from the deposition of appellant himself, it seems that the contract may be unilateral and not bilateral.4
[579]*579We have examined appellant’s other contentions and find no error.
Affirmed.