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For like reasons, an action for deceit will not lie to recover damages for fraud practiced in, or in inducing, the sale.
$ 1057. Ratification of Sunday sales.- Whether the Sunday sale is capable of being ratified and confirmed upon a subsequent week-day is a question respecting which there is much difference of opinion and conflict of authority. It is said on the one hand that the contract is void, and therefore cannot be ratified. It is asserted on the other hand that the contract is not void but merely voidable, and is therefore capable of ratification and confirmation. The true view, however, is be
517], or other illegal sale. Howard v. A Sunday sale cannot be ratified Harris (1864), 8 Allen (Mass.), 297. in Michigan; there must be all the
1“ It is well settled that when par- elements of a new contract without ties enter into a contract on Sunday, any dependence upon the Sunday and either of them undertakes to en- transaction. Aspell v. Hosbein, 98 force it by action or to recover dam- Mich. 117, 57 N. W. R. 27; Tucker v. ages growing out of the illegal trans- Mowrey, 12 Mich. 378; Winfield v. action, the law will leave the parties Dodge, 45 Mich. 355, 7 N. W. R. 906, where it finds them and no recovery 40 Am. R. 476; Allen v. Duffie, 43 will be allowed.” Gunderson v. Rich. Mich. 1, 4 N. W. R. 427, 38 Am. R. 159; ardson (1881), 56 Iowa, 56. See Robe- Arbuckle v. Reaume, 96 Mich. 243, 55 son v. French, 12 Metc. (Mass.) 24. N. W. R. 808; Pillen v. Erickson Contra, Adams v. Gay, 19 Vt. 358. (1900), - Mich. 47 Det. Leg. N. 415.
? The contract cannot be ratified in A valid contract cannot be rescinded Massachusetts because the law cre- on Sunday. Benedict v. Bachelder, ates an infirmity which the act of 24 Mich. 425. the parties cannot remove: Day v. 3 The leading case on this side is McAllister, 15 Gray, 433; and for the the English case of Williams v. Paul same reasons, substantially, in Maine: (1830), 6 Bingham, 653, 19 Eng. C. L Plaisted v. Palmer, 63 Me. 576; Tillock 295. Here a bargain was made on v. Webb, 56 Me. 100; Pope v. Linn, 50 Saturday evening for the sale of catMe. 83; and Coneciicut: Grant v. tle subject to the buyer's inspection McGrath, 56 Conn. 333, 15 Atl. R. 370; and approval next morning. On Sunand New Hampshire: Boutelle v. day the cattle were inspected, apMelendy, 19 N. H. 196; and Missis. proved and delivered, on a term of sippi: Kountz v. Price, 40 Miss. 341; credit agreed upon the evening beand Minnesota: Handy v. Publishing fore. A dispute afterwards arose as Co., 41 Minn. 188, 16 Am. St. R. 695, to the identity of one of the cattle 4 L. R. A. 466, 42 N. W. R. 872 [but with the one which the buyer had see Van Hoven v. Irish (1882), 10 Fed. selected, and the buyer refused to pay R. 13); and New Jersey: Gennert v. for this one but kept it in his posses. Wuestner, 53 N. J. Eq. 302, 31 Atl. sion. Being afterwards urged to pay, R. 609.
he said he would pay when the time
lieved to be that the contract, because made upon Sunday, is an illegal contract, and that this infirmity, attaching to it by act of the law and not by act of the parties, must thereafter adhere to it notwithstanding the efforts of the parties to re
was up. He did not pay for this ani- no ground for impeaching the vermal and suit was brought. Bayley, dict.” Williams v. Paul was doubted J., before whom the cause was tried, by Parke, B., in Simpson v. Nicholls thought that as the defendant had (1838), 3 Mees. & Wels. 240, as exkept the beast, and subsequently plained in note, 5 id. 702. It has, promised to pay, he was liable for its owever, had more or less influence value on a quantum meruit, though upon the law in this country, as the not for the price agreed to upon Sun- cases now to be cited will show. It day. Verdict for the plaintiff. Rule is cited with approval in Campbell v. entered to set aside verdict and for Young, 9 Bush (Ky.), 240; Sayles v. nonsuit, by reason of the statute. Wellman, 10 R. I. 465; Adams v. Gay, This rule was discharged by the court, 19 Vt. 358; Smith v. Case, 2 Oreg. 190; Park, Gaselee and Bosanquet, JJ., the Tucker v. West, 29 Ark, 386. But, on former saying: “We hold the defend the other hand, it was doubted or ant liable on the ground taken by denied in Tuckerman v. Hinkley, 9 the learned judge at the trial, al- Allen (Mass.), 452; Kountz v. Dickson, though we regret to be obliged to 40 Miss. 341; Boutelle v. Melendy, 19 come to this conclusion because it N. H. 196. may have a tendency to defeat the In Verniont it is said, in the case statute. But here it appears that the of Flinn v. St. John (1879), 51 Vt. 334: defendant not only retained the ani- “ It is well settled in this State mal, but made a new promise to pay whatever may be the decisions in subsequently to the Sunday, and his other States that the illegality present refusal is not consistent with which attaches to a contract exethe practice of a very sincere Chris- cuted on Sunday is not an illegality tian.” Gaselee, J., said: “I am of which enters into the subject matter opinion that this contract was made or essence of the contract, and for on Sunday, but what passed after- that reason renders it void; that wards is sufficient to sustain the ver such contracts, only being illegal on dict. The subsequent promise was account of the day on which they sufficient on the quantum meruit, or are made, are capable of ratification as a ratification of the agreement of by any act which fairly recognizes Saturday.” Bosanquet, J., said: “I them as existing contracts, on a subam of the same opinion, and think sequent week-day, like a promise to the ground taken by the learned perform, or pay the amount stipujudge at the trial correct. The orig- lated therein, or a part payment of inal contract was on Sunday, but the the same, or a refusal to return propthing sold was left in the possession erty fraudulently obtained by such of the defendant. Some time after contract, or an offer to rescind by wards he promised to pay; and the the other party and a demand for jury having found the value, there is the return of the property. Lovejoy
move it. They may make a new contract on a secular day, if they will, of the same import as the old one, but in order that the intentions which they had in mind at the time of making the Sunday contract shall subsequently be given legal effect, their subsequent acts must amount in legal contemplation to the making of a new contract.
v. Whipple, 18 Vt. 379, 46 Am. Dec.. In Maryland, see Haacke v. Knights 157; Adams v. Gay, 19 Vt. 358; Sar- (1892), 76 Md. 429, 25 Atl. R. 422. geant v. Butts, 21 Vt. 99; Sumner 1 This distinction has been nowhere v. Jones, 24 Vt. 317. These cases go more clearly made than by Hoar, J., the full length of holding that any in Day v. McAllister, 15 Gray (Mass), act done by the parties on a week- 433. The action was upon a promisday which recognizes it as a contract sory note given upon Sunday for existing between them is a ratifica- goods then purchased, but which the tion."
plaintiff alleged had been ratified by So also in Rhode Island. In Sayles the maker subsequently by his rev. Wellman (1873), 10 R. I. 465, it ap- taining the property and dealing peared that S. sold and delivered to with it as his own. Said the court, W. on Sunday a pair of horses for per Hoar, J.: “The contract upon $310. On the following Tuesday W. which the plaintiff declares, being paid $200 and gave his note for the an illegal contract, expressly prohibbalance, on which the suit was ited by statute, will not support an brought. Held, that the Sunday con- action. Bayley v. Taber, 5 Mass. 286. tract had been ratified, and also that 4 Am. Dec. 57; Pattee v. Greely, 13 there was a new promise for which Met. 284; Merriam v. Stearns, 10 Cush. the retention of the property was a 257. It has no legal force or obligasufficient consideration.
tion. No repudiation by a formal Iowa and Arkansas.- A promis- act was necessary to render it inopsory note made on Sunday, and there- erative. It had no partial validity fore "void,” is ratified and made valid such as would make it capable of by a partial payment made on a sec- subsequent completion. The statute ular day (Russell v. Murdock, 79 Iowa, which prohibited it was not designed 101, 44 N. W. R. 237), or by a subse- merely for the protection of the de quent promise to pay. Tucker v. fendant, giving him a personal privWest, 29 Ark. 386.
ilege which he might waive; but A Sunday contract may be ratified rested upon grounds of broad public in Indiana. Kuhns v. Gates, 92 Ind. policy. The defendant could not rat66; Williamson v. Brandenburg, 6 ify the illegal contract, because its Ind. App. 97, 32 N. E. R. 1022. want of validity did not depend in
So in Missouri: Gwinn v. Simes any degree upon his choice. Th (1875), 61 Mo. 335; Wilson v. Milligan law annulled it, and there was no (1881), 75 Mo. 41; and Kentucky: subject of ratification. He might Campbell v. Young (1872), 9 Bush, 240. make a new one; but any arrange
In Wisconsin, see Williams v. Lane, ment or agreement between the par87 Wis. 152, 58 N. W. R. 77.
ties on any subsequent day, whether
§ 1058. Consideration required.— What shall be the consideration which will support this new contract is likewise a question in respect of which the courts differ. The so-called moral consideration to pay for the goods received upon Sunday has been deemed sufficient in some cases; and where the title has not passed and the goods may be recovered, there could be no doubt that permitting the buyer to retain them would be a sufficient consideration for a promise to pay for them;? but where the title has passed, or where the seller cannot compel the restoration of the goods, it is difficult to see how anything connected with the Sunday dealings can supply the needful consideration.?
direct and express, or implied from be a new promise for which the their dealings with each other's prop- moral obligation to pay in pursuance erty, would be a new and independ- of the former contract is a sufficient ent transaction. It is not quite ac consideration. Gwinn v. Simes, 61 curate to speak of the 'ratification' Mo. 335. So, in Wisconsin, though by a party of something which the there can be no ratification (Vinz v. law forbids, and which is made void, Beatty, 61 Wis. 645, 21 N. W. R. 787), not from any want of his full con- it seems that the delivery of the goods sent, but in spite of it. 20 Amer. under the Sunday contract is a suffiJurist, 255. The distinction is clearly cient consideration for a subsequent regarded in Williams v. Paul, 6 Bing. promise to pay for them. Melchoir 653, and in the decision of the recent v. McCarty, 31 Wis. 252, 11 Atl. R. 605; case of Stebbins v. Peck, 8 Gray, 553. Williams v. Lane, 87 Wis. 152, 58 N. In the latter case the word 'ratifica. W. R. 77; Hopkins v. Stefan, 77 Wis. tion' is used, it is true, but it is in 45, 45 N. W. R. 676. connection with the word 'adoption,' If goods are sold and delivered to and was not intended, as the context A and B on Sunday, the sale being shows, to give any countenance to induced by the false representations the idea that the contract could be of A made on a previous day, and made valid ab initio by any subse. subsequently, on a week day, the quent agreement between the par- seller demands the price of A and he ties. This action is upon the note; promises to pay it, this amounts to the original illegal contract, and it a sale to A and he is liable for the cannot be maintained."
price. Winchell v. Carey (1874), 115 | Mere retention of the property Mass. 560, 15 Am. R. 151. bought on Sunday is not a ratifica- ? See the criticism of Baron Parke tion: there must be an express prom- upon Williams v. Paul, in Simpson v. ise. Dodson v. Harris (1846), 10 Ala. Nicholls, 3 Mees. & Wels. 244, as cor566. There can be no ratification of rected in 5 id. 702. the Sunday contract; but there may
$ 1059. — Conflict of laws.- Where, by the statute of the State, the whole transaction is void because made on Sundar, no recovery can be had, it is held, upon the notes given for the price, when the action is brought in that State, although the payee resides, and the notes are made payable, in another State where no such statute is shown to exist."
But, in accordance with the general rule, if the contract were made in a State which had no statute or in which no statute was shown to exist, it will be enforced in another State although in that State no such contract could lawfully be made.3
1 Arbuckle v. Reaume (1893), 96 contains an exhaustive discussion); Mich. 243, 55 N. W. R. 808.
McKee v. Jones (1889), 67 Miss. 405, 2 See ante, SS 1027-1029, 1043. 7 S. R. 348; Brown v. Browning (1886),
3 O'Rourke v. O'Rourke (1880), 43 15 R. L 422, 7 ALL R. 403, 2 Am. St. R. Mich. 58, 4 N. W. R. 531; Swann v. 908. Swann (1884), 21 Fed. R. 299 (which