Winburn

Plaintiff appeals from summary judgment (Code Civ. Proc., § 437c). The question is whether the oral agreement sued upon is within the statute of frauds because by its terms it “is not to be performed within a year from the making thereof” (Civ. Code, § 1624, subd. 1).

The complaint alleges that in July 1960 the parties orally agreed that plaintiff should be the west coast factory rep *382 resentative of defendant for the calendar year 1961, his compensation to be 5 per cent of sales made by him. Like facts are averred in plaintiff’s deposition, quoted in the affidavit supporting defendant’s motion. Plaintiff points to the statement in his deposition that January and February “is the selling stage of the jackets.” This, he says, shows that plaintiff’s entire performance could be completed within one year of the agreement date, and the statute thus does not apply.

But plaintiff insists that defendant was to continue to pay commissions on sales made through the seventeenth month would be deferred payments, but asserts that “fill-in” orders following date of agreement. He does not suggest that there were to be taken throughout 1961, either by mail or on a November trip by plaintiff.…