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$ 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. Black- ceived, recover back the property as ston (1880), 128 Mass. 148.

if no such sale had been made ? Thus a statute providing that “The court below charged the af. rooms, etc., in which intoxicating firmative of this proposition; and, liquors are exposed for sale shall if correct, the judgment must be conbe kept closed on Sunday was held firmed. The statute (R. S. of 1846, not to prevent inn and boarding- ch. 43, sec. 1; Comp. L., § 1574) prohouse keepers, engaged in the liquor vides that ‘no person shall keep open traffic, from supplying the ordinary his shop, warehouse or workhouse, or meals to regular boarders on that shall do any manner of labor, busiday. State v. Gregory (1879), 47 Conn. ness or work, except work of neces276. And in Carver v. State (1879), sity or charity, on the first day of 69 Ind. 61, 35 Am. R. 205, it was held the week; and every person so ofthat where a hotel proprietor keeps fending shall be punished by a fine a cigar stand as part of the estab- not exceeding ten dollars for each lishment, from which cigars were offense.' sold on week days to his guests, " It was held in Adams v. Hamell, boarders and customers, a sale of 2 Doug. (Mich.) 73, that this statute cigars from the same stand in the rendered void a contract made on same way, on Sunday, was not un- Sunday for the exchange of horses, lawful.

and a note given for the difference. 1 In Tucker v. Mowrey (1864), 12 “This decision we fully approve. Mich. 378, it was held that a person The statute not only makes it a who had sold a chattel on Sunday penal offense, but takes away the might restore the consideration and legal capacity of the parties to make regain the chattel by replevin. Said a contract on that day. And whether the court, per Christiancy, J.: "Can the supposed contract has been exthe vendor of property sold and de- ecuted or remains executory, we livered on Sunday, by tendering to think the rights of the parties are to the vender the consideration re- 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.?

as if no such contract had ever been course will be most likely to discourmade. The contract as such can age such contracts and to promote neither be set up as the basis of an the public welfare. The illegality action nor as a ground of defense. here in question is of a peculiar kind. If it be a contract of sale, accompa- The contract is not illegal in respect nied by payment and delivery, as to the consideration, or the thing supposed in the present case, no prop- done or agreed to be done; these are erty passes, and the vendor, by ten- neither immoral nor forbidden by dering back what he has received, law. The illegality consists wholly may reclaim the property, and the in making the contract on a particuvendee, on tendering back the prop- lar day. This suit is not brought to erty, may recover the money or prop- enforce the contract, but in disaffirmerty given in payment or exchange, ance of it. And we think it much as if no pretense of such contract more in accordance with sound pubexisted.

lic policy to treat the contract as ut“Whether the action could be sus- terly void, and to allow the plaintiff, tained without such tender is a ques. by tendering back what he has re tion which does not arise in this case, ceived (or doing what is in his power and we therefore express no opinion to place the vendee in statu quo), to upon it. But being utterly void, the recover back his property, than to contract is incapable of ratification. refuse him a remedy, and thereby

"Doubtless the subsequent acts to affirm the contract as valid. - To re. and assent of the parties may be such fuse all remedy in such cases would as to create a new contract, but they be to open a wide door to fraud. It cannot ratify that which is void. would operate not only as a trap to And perhaps the acts and conversa- the ignorant and unwary, but as a tions of the parties on Sunday, in ref. direct encouragement to swindling." erence to a contract, might be shown So in Winfield v. Dodge, 45 Mich. as explanatory of their subsequent 355, 7 N. W. R. 906, 40 Am. R. 476, a acts and conversations tending to party who had traded horses upon show a new contract.

Sunday was permitted in replevin to “As a general rule, courts of law regain his horse after offering to re have left the parties to an executed store the one he had received. illegal contract in the positions in 1 In Foster v. Wooten, 67 Miss. 540, which they have placed themselves, ✓ S. R. 501, it is said: “Grant, then, refusing to aid either of them when that the sale was made on Sunday; equally in fault. But this is a ques. what is the rule of law on such state tion purely of public policy, and con. of facts? Nothing more than abso sequently there are exceptions to the lute non-action. It will give neither rule. Courts should give or refuse party to the contract any assistance, their aid as the one or the other 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. a protection to the defendant, but That is the extent of the rule.” In as a disability in the plaintiff. Upon Kelley v. Cosgrove, 83 Iowa, 229, 48 this principle, possession, acquired N. W. R. 979, it is said: “It is well from an illegal transaction, or by a settled that the law will not aid the contract fully executed, will often parties to enforce a contract made avail the party holding it as a suffi. on Sunday. Thus, if A sells his horse cient title. Neither party is allowed to B on Sunday on credit, the law to impeach its validity by asserting will not aid him to enforce a pay- the illegality of his own act. The ment. It will sooner permit him to transaction takes effect from the dissuffer the loss. Much less will it, if ability of the parties to assert any he sells his horse on Sunday, and re- right to the contrary. The court ceives in money the full value thereof, does not give it effect, but simply assist him on Monday to return the refuses its aid to undo what the parmoney and regain his horse.” In ties have already done. Chitty on Myers v. Meinrath, 101 Mass. 366, 3 Cont. (10th Am. ed.) 732; Johnson v. Am. R. 368, it is said: “That contracts Willis, 7 Gray (Mass.), 164; King v. made

upon the Lord's day are illegal; Green, 6 Allen (Mass.), 139; Worcesthat no action based upon such a con- ter v. Eaton, 11 Mass. 368.” It was tract can be maintained in a court therefore held in Myers v. Meinrath of law or equity, either to enforce its that replevin could not be mainobligations or to secure its fruits, in tained by one party to recover what favor of either party, are proposi- he had parted with under a Sunday tions settled beyond controversy. trade. So also Cohn v. Heimbauch, But such contracts are not altogether 86 Wis. 176, 56 N. W. R. 638. inoperative. They may be executed So far has the effect of the Sunday by the parties, and then the same contract in passing the title been principle of public policy which leads carried that it was held in Kinney v. courts to refuse to act, when called McDermot (1881), 55 Iowa, 674, 39 upon to enforce them, will prevent Am. R. 191, 8 N. W. R. 656, that one the court from acting to relieve who has received property under a either party from the consequences Sunday contract may replevy it if of the illegal transaction. This may the former owner retakes it without indirectly give effect to the executed his consent. The facts in this case illegal contract. The purpose of the were that on a Sunday A and B law, however, is not to give validity agreed to exchange horses, and A was to the transaction, but to deprive the to pay B $25 boot on the following parties of all right to have either en. Sunday. On the day of the agree forcement of or relief from their ment, Sunday, the horses were exillegal contracts. In such cases the changed. On the following Tuesday, defense of illegality prevails, not as 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;1 while the courts in Michigan, though refusing to enforce, would aid in undoing the contract.?

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 attachment 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.'

$ 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.?

day, for the price of the goods, can- the oxen and took them away, paying not be enforced by the payee. Wads- a part of the price. Held, a valid worth v. Dunnam (1897), 117 Ala. 661, sale. Moseley v. Vanhooser, 6 Lea 23 S. R. 699; O'Donnell v. Sweeney (Tenn.), 286, 40 Am. R. 37. So, in effect, (1813), 5 Ala. 467, 39 Am. Dec. 336; Evert v. Kleimenhagen, 6 S. Dak. 221, Adams v. Hamell (1845), 2 Doug. 60 N. W. R. 851. So in Rosenblatt (Mich.) 73, 43 Am. Dec. 455; Foreman v. Townsley (1881), 73 Mo. 536, where V. Ahl (1867), 55 Pa. St. 325 (though the price was agreed upon on Sunif part of the property was not deliv- day, but the sale was not completed ered until Monday the seller may re- until the day following, when the cover for that part, not on the note goods were delivered, it was held a but on the common counts. Foreman valid sale. But if the terms of the V. Ahl, supra); though if it bears date contract are settled on Sunday, it is on a secular day it is valid in the invalid though its execution be dehands of a bona fide holder for value ferred until a week-day. Kountz v. without notice (Cranson v. Goss (1871), Price (1866), 40 Miss. 341. If the price 107 Mass. 439, 9 Am. R. 43; Knox v. is fixed on Sunday it cannot control, Clifford (1875), 38 Wis. 651, 20 Am. R. though the goods were not delivered 28); and where the sale was actually till Monday. If nothing was said consummated on a week-day but a about the price on Monday, the fair note for the price given on Sunday, or market price and not the agreed though the note may be unenforce- price would govern. Bradley v. Rea able the price may be recovered. (1867), 14 Allen (Mass.), 20; s. C., 103 Tucker v. West (1874), 29 Ark. 386. Mass. 188, 4 Am. R. 524.

10n Sunday two parties agreed on 2 No action can be maintained to the terms of sale of a yoke of oxen, enforce warranty on a Sunday (Fen. subject to the purchaser's inspection ley y. Quirk (1864), 9 Minn. 194, 86 and approval of them. The next day Am. Dec. 93; Fennell v. Ridler (1826), the buyer inspected and approved 5 Barn. & Cr. 406, 11 Eng. Com. Lo

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