1053. Their effect. Assuming, however, that the language of the statute forbids sales made upon Sunday, the question next arises, What is the effect of this prohibition upon the rights and remedies of the parties? If the contract has not been performed on either side, its performance will not be enforced; the prohibition of the statute is, of course, a sufficient excuse for not performing. But supposing the contract to be fully performed on both sides - the chattel delivered and the price paid, will the law aid or compel the parties to undo it? The court in Michigan has deemed it most consonant with sound policy to treat the contract as void and to permit and aid the parties to disaffirm it and recover what they have parted with.' The majority of the courts, 1, 38 Am. R. 159; Aldrich v. Blackston (1880), 128 Mass. 148. Thus a statute providing that rooms, etc., in which intoxicating liquors are exposed for sale shall be kept closed on Sunday was held not to prevent inn and boardinghouse keepers, engaged in the liquor traffic, from supplying the ordinary meals to regular boarders on that day. State v. Gregory (1879), 47 Conn. 276. And in Carver v. State (1879), 69 Ind. 61, 35 Am. R. 205, it was held that where a hotel proprietor keeps a cigar stand as part of the establishment. from which cigars were sold on week days to his guests, boarders and customers, a sale of cigars from the same stand in the same way, on Sunday, was not unlawful. In Tucker v. Mowrey (1864), 12 Mich. 378, it was held that a person who had sold a chattel on Sunday might restore the consideration and regain the chattel by replevin. Said the court, per Christiancy, J.: "Can the vendor of property sold and delivered on Sunday, by tendering to the vendee the consideration re ceived, recover back the property as if no such sale had been made? "The court below charged the affirmative of this proposition; and, if correct, the judgment must be confirmed. The statute (R. S. of 1846, ch. 43, sec. 1; Comp. L., § 1574) provides that 'no person shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except work of necessity or charity, on the first day of the week; and every person so offending shall be punished by a fine not exceeding ten dollars for each offense.' "It was held in Adams v. Hamell, 2 Doug. (Mich.) 73, that this statute rendered void a contract made on Sunday for the exchange of horses, and a note given for the difference. "This decision we fully approve. The statute not only makes it a penal offense, but takes away the legal capacity of the parties to make a contract on that day. And whether the supposed contract has been executed or remains executory, we think the rights of the parties are to be determined in the same manner however, have not treated the executed contract as void, but have applied the usual rule of leaving the parties where they have placed themselves, and have refused their aid, even in disaffirmance of the contract.1 as if no such contract had ever been made. The contract as such can neither be set up as the basis of an action nor as a ground of defense. If it be a contract of sale, accompanied by payment and delivery, as supposed in the present case, no property passes, and the vendor, by tendering back what he has received, may reclaim the property, and the vendee, on tendering back the property, may recover the money or property given in payment or exchange, as if no pretense of such contract existed. "Whether the action could be sustained without such tender is a question which does not arise in this case, and we therefore express no opinion upon it. But being utterly void, the contract is incapable of ratification. "Doubtless the subsequent acts and assent of the parties may be such as to create a new contract, but they cannot ratify that which is void. And perhaps the acts and conversations of the parties on Sunday, in reference to a contract, might be shown as explanatory of their subsequent acts and conversations tending to show a new contract. "As a general rule, courts of law have left the parties to an executed illegal contract in the positions in which they have placed themselves, refusing to aid either of them when equally in fault. But this is a question purely of public policy, and consequently there are exceptions to the rule. Courts should give or refuse their aid as the one or the other course will be most likely to discourage such contracts and to promote the public welfare. The illegality here in question is of a peculiar kind. The contract is not illegal in respect to the consideration, or the thing done or agreed to be done; these are neither immoral nor forbidden by law. The illegality consists wholly in making the contract on a particular day. This suit is not brought to enforce the contract, but in disaffirmance of it. And we think it much more in accordance with sound public policy to treat the contract as utterly void, and to allow the plaintiff, by tendering back what he has re ceived (or doing what is in his power to place the vendee in statu quo), to recover back his property, than to refuse him a remedy, and thereby to affirm the contract as valid. To refuse all remedy in such cases would be to open a wide door to fraud. It would operate not only as a trap to the ignorant and unwary, but as a direct encouragement to swindling." So in Winfield v. Dodge, 45 Mich. 355, 7 N. W. R. 906, 40 Am. R. 476, a party who had traded horses upon Sunday was permitted in replevin to regain his horse after offering to restore the one he had received. 1 In Foster v. Wooten, 67 Miss. 540, 7 S. R. 501, it is said: "Grant, then, that the sale was made on Sunday; what is the rule of law on such state of facts? Nothing more than absolute non-action. It will give neither party to the contract any assistance, nor listen to any complaint. It will § 1054. Contract partly performed.-If the contract has been performed on one side but not upon the other, as if the goods have been delivered but the price has not been paid, or if the price has been paid but the goods not delivered, the leave the parties where it finds them. That is the extent of the rule." In Kelley v. Cosgrove, 83 Iowa, 229, 48 N. W. R. 979, it is said: "It is well settled that the law will not aid the parties to enforce a contract made on Sunday. Thus, if A sells his horse to B on Sunday on credit, the law will not aid him to enforce a payment. It will sooner permit him to suffer the loss. Much less will it, if he sells his horse on Sunday, and receives in money the full value thereof, assist him on Monday to return the money and regain his horse." In Myers v. Meinrath, 101 Mass. 366, 3 Am. R. 368, it is said: "That contracts made upon the Lord's day are illegal; that no action based upon such a contract can be maintained in a court of law or equity, either to enforce its obligations or to secure its fruits, in favor of either party, are propositions settled beyond controversy. But such contracts are not altogether inoperative. They may be executed by the parties, and then the same principle of public policy which leads courts to refuse to act, when called upon to enforce them, will prevent the court from acting to relieve either party from the consequences of the illegal transaction. This may indirectly give effect to the executed illegal contract. The purpose of the law, however, is not to give validity to the transaction, but to deprive the parties of all right to have either en. forcement of or relief from their illegal contracts. In such cases the defense of illegality prevails, not as a protection to the defendant, but as a disability in the plaintiff. Upon this principle, possession, acquired from an illegal transaction, or by a contract fully executed, will often avail the party holding it as a sufficient title. Neither party is allowed to impeach its validity by asserting the illegality of his own act. The transaction takes effect from the disability of the parties to assert any right to the contrary. The court does not give it effect, but simply refuses its aid to undo what the parties have already done. Chitty on Cont. (10th Am. ed.) 732; Johnson v. Willis, 7 Gray (Mass.), 164; King v. Green, 6 Allen (Mass.), 139; Worcester v. Eaton, 11 Mass. 368." It was therefore held in Myers v. Meinrath that replevin could not be maintained by one party to recover what he had parted with under a Sunday trade. So also Cohn v. Heimbauch, 86 Wis. 176, 56 N. W. R. 638. So far has the effect of the Sunday contract in passing the title been carried that it was held in Kinney v. McDermot (1881), 55 Iowa, 674, 39 Am. R. 191, 8 N. W. R. 656, that one who has received property under a Sunday contract may replevy it if the former owner retakes it without his consent. The facts in this case were that on a Sunday A and B agreed to exchange horses, and A was to pay B $25 boot on the following Sunday. On the day of the agreement, Sunday, the horses were exchanged. On the following Tuesday, B went to A's stable, in A's absence, same difference in policy would appear- the majority of the courts not only refusing to enforce the contract either directly or indirectly, but also refusing to assist one party in regaining what he had parted with; while the courts in Michigan, though refusing to enforce, would aid in undoing the contract.2 left the horse he had received of A and took away the one he had delivered to A. A day or two later A replevied from B the horse which had been delivered to him, and at the time of the trial A had both horses in his possession and had neither paid nor tendered the $25. It was held that A was entitled to maintain the replevin suit. And in Thompson v. Williams (1878), 58 N. H. 248, A sold two cows to B on Sunday for $75. The cows were delivered the same day, but the money was not paid. Some days afterwards A took the cows into his own possession. B sued A in trespass and recovered the value of the cows as damages, on the ground that the title had passed by the Sunday sale. A then sued B for the unpaid purchase price; it appeared by his own testimony on cross-examination that the sale was made on Sunday. Held, that he could not recover, and that B was not estopped, by reason of his recovery in the trespass case, from relying upon the illegality of the Sunday sale. The courts have also refused to interfere in analogous cases relating to land. Ellis v. Hammond, 57 Ga. 179. Creditor not disaffirm.- As the courts will not aid the party himself to recover his property, they will not aid his creditors in doing so. Greene v. Godfrey, 44 Me. 25; Smith v. Bean, 15 N. H. 577; Blass v. Anderson, 57 Ark. 483, 22 S. W. R. 94. Hence, where the owner of a wagon sold it on Sunday and this purchaser resold it to another who was ignorant of the Sunday transaction, it was held that the wagon was not liable to attach. ment at the suit of a creditor of the first seller. Horton v. Buffington, 105 Mass. 399; Chestnut v. Harbaugh, 78 Pa. St. 473. See also Moore v. Kendall (1849), 2 Pin. (Wis.) 99, 52 Am. Dec. 145. Whole contract void.-Unless separable, the whole contract is rendered invalid. Stewart v. Thayer (1897), 168 Mass. 519, 47 N. E. R. 420, 60 Am. St. R. 407. Hence in an action on a note, if part of the goods for which it was given were sold on Sunday the note is void in toto. Wadsworth v. Dunnam (1897), 117 Ala. 661, 23 S. R. 699; Foreman v. Ahl (1867), 55 Pa. St. 325, and cases cited ante, §§ 1003, 1004. 1 If the sale has been made and the goods delivered on a Sunday, but the price has not been paid, no action will lie for the recovery of the price. Pike v. King, 16 Iowa, 49; Smith v. Bean, 15 N. H. 577; Thompson v. Williams, 58 N. H. 248. Neither will an action lie upon an implied promise to pay the reasonable value of the goods. Troewert v. Decker, 51 Wis 46, 37 Am. R. 808, 8 N. W. R. 26. Nor can the seller recover from the purchaser who retains the goods upon the theory of a conversion by the latter. Cohn v. Heimbauch (1893), 86 Wis. 176, 56 N. W. R. 638; Block v. McMurray (1878), 56 Miss. 217, 31 Am. R. 357. A promissory note, given on Sun. 2 See Tucker v. Mowrey, 12 Mich. 378, supra. $ 1055. Contract must be actually made on Sunday. In order, however, that the infirmity now under consideration should attach to the contract, it is essential that it should really have been made on Sunday. Hence, though there were some negotiations on Sunday, if the sale was not actually entered into until a week-day, it is valid.1 $1056. Invalidity extends to collateral agreement like a warranty.-The infirmity attaching to the sale is not confined to the principal contract—that is, to the transfer of the title, alone; but it extends to the incidental or ancillary contracts, like that of warranty, which are annexed to the main one. No recovery, therefore, can be had on a warranty given with a Sunday sale, for the warranty depends upon the sale.2 day, for the price of the goods, cannot be enforced by the payee. Wadsworth v. Dunnam (1897), 117 Ala. 661, 23 S. R. 699; O'Donnell v. Sweeney (1843), 5 Ala. 467, 39 Am. Dec. 336; Adams v. Hamell (1845), 2 Doug. (Mich.) 73, 43 Am. Dec. 455; Foreman v. Ahl (1867), 55 Pa. St. 325 (though if part of the property was not delivered until Monday the seller may recover for that part, not on the note but on the common counts. Foreman v. Ahl, supra); though if it bears date on a secular day it is valid in the hands of a bona fide holder for value without notice (Cranson v. Goss (1871), 107 Mass. 439, 9 Am. R. 45; Knox v. Clifford (1875), 38 Wis. 651, 20 Am. R. 28); and where the sale was actually consummated on a week-day but a note for the price given on Sunday, though the note may be unenforceable the price may be recovered. Tucker v. West (1874), 29 Ark. 386. 1 On Sunday two parties agreed on the terms of sale of a yoke of oxen, subject to the purchaser's inspection and approval of them. The next day the buyer inspected and approved the oxen and took them away, paying a part of the price. Held, a valid sale. Moseley v. Vanhooser, 6 Lea (Tenn.), 286, 40 Am. R. 37. So, in effect, Evert v. Kleimenhagen, 6 S. Dak. 221, 60 N. W. R. 851. So in Rosenblatt v. Townsley (1881), 73 Mo. 536, where the price was agreed upon on Sunday, but the sale was not completed until the day following, when the goods were delivered, it was held a valid sale. But if the terms of the contract are settled on Sunday, it is invalid though its execution be deferred until a week-day. Kountz v. Price (1866), 40 Miss. 341. If the price is fixed on Sunday it cannot control, though the goods were not delivered till Monday. If nothing was said about the price on Monday, the fair or market price and not the agreed price would govern. Bradley v. Rea (1867), 14 Allen (Mass.), 20; s. c., 103 Mass. 188, 4 Am. R. 524. 2 No action can be maintained to enforce warranty on a Sunday [Fenley v. Quirk (1864), 9 Minn. 194, 86 Am. Dec. 93; Fennell v. Ridler (1826), 5 Barn. & Cr. 406, 11 Eng. Com. L |
