4, 366 [136 P.2d 651]. [5] The complaint sets forth that these false representations were relied on by Pesquera, that they were uttered with the intent to mislead Pesquera to the prejudice of plaintiff and that they were made for the purpose, and accomplished the result, of gaining "an advantage to the person in fault." This is fraud under section 1573 of the Civil Code. As an action based on fraud it comes within the three-year limitation of subdivision 4, section 338, Code of Civil Procedure. Since the complaint was filed within three years of the act complained of, it is not barred by the statute.
 3. Respondents attack the validity of the assignment of the agency contract by Reed to his partner Romano; they also attack the validity of the oral consent of Pesquera accepting the assignment and continuing the written contract in full force. From this they argue that since the oral contract covered a period of more than one year, it was within the statute of frauds and so unenforceable. Practically all the authorities are contra. (See 41 Harv.L.Rev. p. 739, n. 12.)
 [6] An oral contract is not void on its face because it may continue an obligation for more than one year. The promissor may waive the statute if he sees fit. [7] An assignment of a partnership interest in an agency contract is not voidable at the will of a third party, such as the defendants herein. There are many factors such as acquiescence, confirmation and estoppel which may arise when these issues come to trial on the merits. In the Speegle case, supra, it was held that this type of action would lie in relation to a contract terminable at will. From the allegations in the complaint, it appears that appellant contends that his contract with Pesquera was terminated through the fraud of respondents, not because of the elimination of the partnership nor because some subsequent oral contract to continue the agency might have been terminable at will. *675
 [3b] Appellant complains of the order of the trial court denying him leave to amend. A proposed 