Bissell, J.
1. In regard to that branch of the statute of frauds, upon which the question in this case arises, the rule is certainly well settled, that unless it appears, that the agreement is not to be performed until after the expiration of a year, it need not be in writing. Thus, if it be on a contingency that may happen within the year, but which does nojt actually happen until after its expiration ; the agreement has been held not to be within the statute. Anon. 1 Salk. 280. Smith v. Westall, 1 Ld. Raym. 316. Fenton v. Ernblers, 3 Burr. 1278.
So also it has been repeatedly adjudged, that unless it appear from the agreement itself, that it is not to be performed within a year, the statute does not apply. In the case cited from Burrow, Mr. Justice Dennison thus lays down the rule: “ The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year.” 3 Burr. 1281.
The same rule, substantially, is asserted, by the supreme court of the state of New-York, in the case of Moore v. Fox, 10 Johns. Rep. 244. The court there say: “ To bring the case within the statute of frauds there must be an express agreement, not to be performed within the space of a year.” [461]*461See also Lower v. Winters, 7 Cow. 263. McLees v. Hale & al. 10 Wend. 426.
The case of Boydell v. Drummond, 11 East 142. does not conflict with these authorities; but obviously proceeds upon the same general principle : for there it was the manifest understanding of the parties, that the contract was not to be completed within a year; although it might, and in fact was, in part performed, within that time.
Now, it will be readily conceded, that the agreement before us might have been performed within the year, and so would not be within the statute, if the plaintiff’s services might have commenced immediately upon the making of the contract. There was no stipulation as to any future time ; nor was there any thing, in the nature of the contract, which forbad an immediate tender of the plaintiff’s services. The jury were told, that under these circumstances, the services might, and they have found they were to commence immediately.
It is, however, claimed, that the legal effect of the contract was, that the services might not so commence, but must commence at some future reasonable time. No case has been cited in support of this position; and we know of no principle on which it can be rested. An agreement to pay money generally, is an agreement to pay it immediately. Bacon v. Page 1 Conn. Rep. 404. And we suppose the rule to be equally well settled, that where there is an agreement to do any collateral thing, the one party may tender, and the other may require, an immediate performance.
In Williams v. Jones, 5 Barn. & Ald. 108. an attorney had entered into a written contract, whereby he agreed to take into partnership, in the business of an attorney, a person who had not, at that time, been admitted. No time was expressly fixed for the commencement of the partnership. And it was held, that no time being expressly appointed, the partnership commenced from the date of the agreement; that it was an agreement for a'present partnership; and that parol evidence could not be received to prove that the agreement was not to take effect until the person had been duly admitted. Best, C. J., says: “ The declaration in this case describes the contract as forming a partnership to commence in praesenli, and the agreement corresponds with the description given in the declarationHolroyd, J. says : “ Whatever may have been [462]*462the intent of the parties, which I collect to have been that the instrument should take effect immediately, at all events, the law gives it that effect, no time for its commencement being mentioned in the instrument.”
This case is entirely decisive of the present; and clearly proves, that the plaintiff’s services might have commenced immediately, and so the entire contract have'been performed within the year. We are clearly of this opinion, not only on the authority of the case last cited, but in conformity to principles, which are well settled, in analogous cases.
This view of the case, it will at once be seen, disposes of the question of variance. The contract was declared on, according to its legal effect.
The ruling on the circuit was, therefore, right; and the motion for a new trial must be denied.
2. A motion in arrest of judgment, for the insufficiency of the declaration, was filed in the superior court; and the questions arising thereon, were reserved for our advice. The objection, coming in this stage of the case, is certainly entitled to no favour; and we have accordingly examined the declaration, with some anxiety to sustain it, if possible ; and to give to the plaintiff the benefit of his verdict. But we are constrained to yield to the claims of the defendants’ counsel, and to hold this declaration to be insufficient.
The pleader has manifestly undertaken to declare ifpon an executory contract, and to make the plaintiff’s promise the consideration for the undertaking of the defendants’. Has he then stated a promise by the plaintiff? If not, the promise of the defendants is clearly void, for want of consideration. It is true, that where the plaintiff has performed, on his part, either wholly or partially, a promise by him need not be set out. The performance is the consideration. But where no performance is averred — where the agreement is wholly executo-ry — -where there is merely promise for promise; it is very clear, that unless the plaintiff show a valid promise by him, he shows no ground of action. The engagement is all on one side ; and therefore, nudum pactum.
Now, in the declaration before us, it is alleged, that in consideration that the plaintiff, at the special instance and request of the defendants, would labour for them, for one year, they, the defendants, promised, «fee., and there is no averment [463]*463that the plaintiff did labour, &c. Does, then, this naked averment import an undertaking to perform the labour, Ihe plaintiff 7 So far from it, it does not even imply a willingness on his part, but merely a proposition, by the defendants, that if he would labour, they would pay. There is no precedent of a declaration like this. We do not mean, that an allegation, like the present, is uncommon ; but when adopted, it is uniformly followed by an averment of performance, or part performance, on the part of the plaintiff. And so are all the authorities. Callo v. Brouncker, 4 Car. Payne, 518. White v. Wilson, 2 Bos. & Pul. 116. Fawcett v. Cash, 5 Barn. & Ald. 904. Peeters v. Opie, 2 Saund. 350. and note 3. p. 352. Lent & al. v. Padelford, 10 Mass.
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Bissell, J.
1. In regard to that branch of the statute of frauds, upon which the question in this case arises, the rule is certainly well settled, that unless it appears, that the agreement is not to be performed until after the expiration of a year, it need not be in writing. Thus, if it be on a contingency that may happen within the year, but which does nojt actually happen until after its expiration ; the agreement has been held not to be within the statute. Anon. 1 Salk. 280. Smith v. Westall, 1 Ld. Raym. 316. Fenton v. Ernblers, 3 Burr. 1278.
So also it has been repeatedly adjudged, that unless it appear from the agreement itself, that it is not to be performed within a year, the statute does not apply. In the case cited from Burrow, Mr. Justice Dennison thus lays down the rule: “ The statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it; nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year.” 3 Burr. 1281.
The same rule, substantially, is asserted, by the supreme court of the state of New-York, in the case of Moore v. Fox, 10 Johns. Rep. 244. The court there say: “ To bring the case within the statute of frauds there must be an express agreement, not to be performed within the space of a year.” [461]*461See also Lower v. Winters, 7 Cow. 263. McLees v. Hale & al. 10 Wend. 426.
The case of Boydell v. Drummond, 11 East 142. does not conflict with these authorities; but obviously proceeds upon the same general principle : for there it was the manifest understanding of the parties, that the contract was not to be completed within a year; although it might, and in fact was, in part performed, within that time.
Now, it will be readily conceded, that the agreement before us might have been performed within the year, and so would not be within the statute, if the plaintiff’s services might have commenced immediately upon the making of the contract. There was no stipulation as to any future time ; nor was there any thing, in the nature of the contract, which forbad an immediate tender of the plaintiff’s services. The jury were told, that under these circumstances, the services might, and they have found they were to commence immediately.
It is, however, claimed, that the legal effect of the contract was, that the services might not so commence, but must commence at some future reasonable time. No case has been cited in support of this position; and we know of no principle on which it can be rested. An agreement to pay money generally, is an agreement to pay it immediately. Bacon v. Page 1 Conn. Rep. 404. And we suppose the rule to be equally well settled, that where there is an agreement to do any collateral thing, the one party may tender, and the other may require, an immediate performance.
In Williams v. Jones, 5 Barn. & Ald. 108. an attorney had entered into a written contract, whereby he agreed to take into partnership, in the business of an attorney, a person who had not, at that time, been admitted. No time was expressly fixed for the commencement of the partnership. And it was held, that no time being expressly appointed, the partnership commenced from the date of the agreement; that it was an agreement for a'present partnership; and that parol evidence could not be received to prove that the agreement was not to take effect until the person had been duly admitted. Best, C. J., says: “ The declaration in this case describes the contract as forming a partnership to commence in praesenli, and the agreement corresponds with the description given in the declarationHolroyd, J. says : “ Whatever may have been [462]*462the intent of the parties, which I collect to have been that the instrument should take effect immediately, at all events, the law gives it that effect, no time for its commencement being mentioned in the instrument.”
This case is entirely decisive of the present; and clearly proves, that the plaintiff’s services might have commenced immediately, and so the entire contract have'been performed within the year. We are clearly of this opinion, not only on the authority of the case last cited, but in conformity to principles, which are well settled, in analogous cases.
This view of the case, it will at once be seen, disposes of the question of variance. The contract was declared on, according to its legal effect.
The ruling on the circuit was, therefore, right; and the motion for a new trial must be denied.
2. A motion in arrest of judgment, for the insufficiency of the declaration, was filed in the superior court; and the questions arising thereon, were reserved for our advice. The objection, coming in this stage of the case, is certainly entitled to no favour; and we have accordingly examined the declaration, with some anxiety to sustain it, if possible ; and to give to the plaintiff the benefit of his verdict. But we are constrained to yield to the claims of the defendants’ counsel, and to hold this declaration to be insufficient.
The pleader has manifestly undertaken to declare ifpon an executory contract, and to make the plaintiff’s promise the consideration for the undertaking of the defendants’. Has he then stated a promise by the plaintiff? If not, the promise of the defendants is clearly void, for want of consideration. It is true, that where the plaintiff has performed, on his part, either wholly or partially, a promise by him need not be set out. The performance is the consideration. But where no performance is averred — where the agreement is wholly executo-ry — -where there is merely promise for promise; it is very clear, that unless the plaintiff show a valid promise by him, he shows no ground of action. The engagement is all on one side ; and therefore, nudum pactum.
Now, in the declaration before us, it is alleged, that in consideration that the plaintiff, at the special instance and request of the defendants, would labour for them, for one year, they, the defendants, promised, «fee., and there is no averment [463]*463that the plaintiff did labour, &c. Does, then, this naked averment import an undertaking to perform the labour, Ihe plaintiff 7 So far from it, it does not even imply a willingness on his part, but merely a proposition, by the defendants, that if he would labour, they would pay. There is no precedent of a declaration like this. We do not mean, that an allegation, like the present, is uncommon ; but when adopted, it is uniformly followed by an averment of performance, or part performance, on the part of the plaintiff. And so are all the authorities. Callo v. Brouncker, 4 Car. Payne, 518. White v. Wilson, 2 Bos. & Pul. 116. Fawcett v. Cash, 5 Barn. & Ald. 904. Peeters v. Opie, 2 Saund. 350. and note 3. p. 352. Lent & al. v. Padelford, 10 Mass. Rep. 230. 2 Chitt. Plead. 84. & seq.
The authorities also are full to show, that this declaration cannot be sustained. Lea v. Welch, 2 Ld. Raym. 1516. Law v. Sanders, Cro. Eliz. 913.
This view of the case renders it unnecessary to consider the other objections that have been taken to the declaration.
It has, however, been strongly insisted, that the defects in the declaration, if any, are cured by verdict.
On this subject the rule is well settled, that where the plaintiff has stated his title or ground of action defectively or inaccurately, there the defect will be aided; as all the circumstances necessary to complete the title, will be presumed to have been proved on the trial: but that where he totally omits to state his title or cause of action, it need not be proved on the trial, and there is no room for presumption. Such a defect, therefore, will not be aided. Rushton v. Aspinall, Doug. 679. Spieres v. Parker, 1 Term Rep. 145. 1 Saund. 228. n. 1. and the cases there cited.
The application of the rule to the case before us, is too obvious to require any comment; and the result is, that we must advise the superior court that the declaration is insufficient.
In this opinion the other Judges concurred.
Declaration insufficient.