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 3 517], or other illegal sale. Howard v. Harris (1864), 8 Allen (Mass.), 297. "It is well settled that when parties enter into a contract on Sunday, and either of them undertakes to enforce it by action or to recover damages growing out of the illegal transaction, the law will leave the parties where it finds them and no recovery will be allowed." Gunderson v. Richardson (1881), 56 Iowa, 56. See Robeson v. French, 12 Metc. (Mass.) 24. Contra, Adams v. Gay, 19 Vt. 358. 2 The contract cannot be ratified in Massachusetts because the law creates an infirmity which the act of the parties cannot remove: Day v. McAllister, 15 Gray, 433; and for the same reasons, substantially, in Maine: Plaisted v. Palmer, 63 Me. 576; Tillock v. Webb, 56 Me. 100; Pope v. Linn, 50 Me. 83; and Connecticut: Grant v. McGrath, 56 Conn. 333, 15 Atl. R. 370; and New Hampshire: Boutelle v. Melendy, 19 N. H. 196; and Mississippi: Kountz v. Price, 40 Miss. 341; and Minnesota: Handy v. Publishing Co., 41 Minn. 188, 16 Am. St. R. 695, 4 L. R. A. 466, 42 N. W. R. 872 [but see Van Hoven v. Irish (1882), 10 Fed. R. 13]; and New Jersey: Gennert v. Wuestner, 53 N. J. Eq. 302, 31 Atl. R. 609. A Sunday sale cannot be ratified in Michigan; there must be all the elements of a new contract without any dependence upon the Sunday transaction. Aspell v. Hosbein, 98 Mich. 117, 57 N. W. R. 27; Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355, 7 N. W. R. 906, 40 Am. R. 476; Allen v. Duffie, 43 Mich. 1, 4 N. W. R. 427, 38 Am. R. 159; Arbuckle v. Reaume, 96 Mich. 243, 55 N. W. R. 808; Pillen v. Erickson (1900), A valid contract cannot be rescinded on Sunday. Benedict v. Bachelder, 24 Mich. 425. – Mich. ——, 7 Det. Leg. N. 415. 3 The leading case on this side is the English case of Williams v. Paul (1830), 6 Bingham, 653, 19 Eng. C. L 295. Here a bargain was made on Saturday evening for the sale of cattle subject to the buyer's inspection and approval next morning. On Sunday the cattle were inspected, approved and delivered, on a term of credit agreed upon the evening before. A dispute afterwards arose as to the identity of one of the cattle with the one which the buyer had selected, and the buyer refused to pay for this one but kept it in his possession. Being afterwards urged to pay, 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 animal and suit was brought. Bayley, J., before whom the cause was tried, thought that as the defendant had kept the beast, and subsequently promised to pay, he was liable for its value on a quantum meruit, though not for the price agreed to upon Sunday. Verdict for the plaintiff. Rule entered to set aside verdict and for nonsuit, by reason of the statute. This rule was discharged by the court, Park, Gaselee and Bosanquet, JJ., the former saying: "We hold the defendant liable on the ground taken by the learned judge at the trial, although we regret to be obliged to come to this conclusion because it may have a tendency to defeat the statute. But here it appears that the defendant not only retained the animal, but made a new promise to pay subsequently to the Sunday, and his present refusal is not consistent with the practice of a very sincere Christian." Gaselee, J., said: "I am of opinion that this contract was made on Sunday, but what passed after wards is sufficient to sustain the verdict. The subsequent promise was sufficient on the quantum meruit, or as a ratification of the agreement of Saturday." Bosanquet, J., said: "I am of the same opinion, and think the ground taken by the learned judge at the trial correct. The original contract was on Sunday, but the thing sold was left in the possession of the defendant. Some time afterwards he promised to pay; and the jury having found the value, there is no ground for impeaching the verdict." Williams v. Paul was doubted by Parke, B., in Simpson v. Nicholls (1838), 3 Mees. & Wels. 240, as explained in note, 5 id. 702. It has, however, had more or less influence upon the law in this country, as the cases now to be cited will show. It is cited with approval in Campbell v. Young, 9 Bush (Ky.), 240; Sayles v. Wellman, 10 R. I. 465; Adams v. Gay, 19 Vt. 358; Smith v. Case, 2 Oreg. 190; Tucker v. West, 29 Ark. 386. But, on the other hand, it was doubted or denied in Tuckerman v. Hinkley, 9 Allen (Mass.), 452; Kountz v. Dickson, 40 Miss. 341; Boutelle v. Melendy, 19 N. H. 196. In Vermont it is said, in the case of Flinn v. St. John (1879), 51 Vt. 334: "It is well settled in this State whatever may be the decisions in other States that the illegality which attaches to a contract executed on Sunday is not an illegality which enters into the subject-matter or essence of the contract, and for that reason renders it void; that such contracts, only being illegal on account of the day on which they are made, are capable of ratification by any act which fairly recognizes them as existing contracts, on a subsequent week-day, like a promise to perform, or pay the amount stipulated therein, or a part payment of the same, or a refusal to return property fraudulently obtained by such contract, or an offer to rescind by the other party and a demand for 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.1 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 v. Jones, 24 Vt. 317. These cases go the full length of holding that any act done by the parties on a weekday which recognizes it as a contract existing between them is a ratification." So also in Rhode Island. In Sayles v. Wellman (1873), 10 R. I. 465, it appeared that S. sold and delivered to W. on Sunday a pair of horses for $340. On the following Tuesday W. paid $200 and gave his note for the balance, on which the suit was brought. Held, that the Sunday contract had been ratified, and also that there was a new promise for which the retention of the property was a sufficient consideration. Iowa and Arkansas.- A promissory note made on Sunday, and therefore "void," is ratified and made valid by a partial payment made on a secular day (Russell v. Murdock, 79 Iowa, 101, 44 N. W. R. 237), or by a subsequent promise to pay. West, 29 Ark. 386. Tucker v. A Sunday contract may be ratified in Indiana. Kuhns v. Gates, 92 Ind. 66; Williamson v. Brandenburg, 6 Ind. App. 97, 32 N. E. R. 1022. So in Missouri: Gwinn v. Simes (1875), 61 Mo. 335; Wilson v. Milligan (1881), 75 Mo. 41; and Kentucky: Campbell v. Young (1872), 9 Bush, 240. In Wisconsin, see Williams v. Lane, 87 Wis. 152, 58 N. W. R. 77. 1 This distinction has been nowhere more clearly made than by Hoar, J., in Day v. McAllister, 15 Gray (Mass), 433. The action was upon a promissory note given upon Sunday for goods then purchased, but which the plaintiff alleged had been ratified by the maker subsequently by his retaining the property and dealing with it as his own. Said the court, per Hoar, J.: "The contract upon which the plaintiff declares, being an illegal contract, expressly prohib ited by statute, will not support an action. Bayley v. Taber, 5 Mass. 286. 4 Am. Dec. 57; Pattee v. Greely, 13 Met. 284; Merriam v. Stearns, 10 Cush. 257. It has no legal force or obligation. No repudiation by a formal act was necessary to render it inoperative. It had no partial validity such as would make it capable of subsequent completion. The statute which prohibited it was not designed merely for the protection of the defendant, giving him a personal privilege which he might waive; but rested upon grounds of broad public policy. The defendant could not ratify the illegal contract, because its want of validity did not depend in any degree upon his choice. The law annulled it, and there was no subject of ratification. He might make a new one; but any arrangement or agreement between the parties 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.2 1 direct and express, or implied from their dealings with each other's property, would be a new and independent transaction. It is not quite accurate to speak of the 'ratification' by a party of something which the law forbids, and which is made void, not from any want of his full consent, but in spite of it. 20 Amer. Jurist, 255. The distinction is clearly regarded in Williams v. Paul, 6 Bing. 653, and in the decision of the recent case of Stebbins v. Peck, 8 Gray, 553. In the latter case the word 'ratification' is used, it is true, but it is in connection with the word 'adoption,' and was not intended, as the context shows, to give any countenance to the idea that the contract could be made valid ab initio by any subsequent agreement between the parties. This action is upon the note; the original illegal contract, and it cannot be maintained." Mere retention of the property bought on Sunday is not a ratification: there must be an express promise. Dodson v. Harris (1846), 10 Ala. 566. There can be no ratification of the Sunday contract; but there may be a new promise for which the moral obligation to pay in pursuance of the former contract is a sufficient consideration. Gwinn v. Simes, 61 Mo. 335. So, in Wisconsin, though there can be no ratification (Vinz v. Beatty, 61 Wis. 645, 21 N. W. R. 787), it seems that the delivery of the goods under the Sunday contract is a sufficient consideration for a subsequent promise to pay for them. Melchoir v. McCarty, 31 Wis. 252, 11 Atl. R. 605; Williams v. Lane, 87 Wis. 152, 58 N. W. R. 77; Hopkins v. Stefan, 77 Wis. 45, 45 N. W. R. 676. If goods are sold and delivered to A and B on Sunday, the sale being induced by the false representations of A made on a previous day, and subsequently, on a week day, the seller demands the price of A and he promises to pay it, this amounts to a sale to A and he is liable for the price. Winchell v. Carey (1874), 115 Mass. 560, 15 Am. R. 151. 2 See the criticism of Baron Parke upon Williams v. Paul, in Simpson v. Nicholls, 3 Mees. & Wels. 244, as corrected in 5 id. 702. § 1059. Conflict of laws.- Where, by the statute of the State, the whole transaction is void because made on Sunday, 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. 2 See ante, §§ 1027-1029, 1043. 3 O'Rourke v. O'Rourke (1880), 43 Mich. 58, 4 N. W. R. 531; Swann v. Swann (1884), 21 Fed. R. 299 (which 918 McKee v. Jones (1889), 67 Miss. 405, 7 S. R. 348; Brown v. Browning (1886), 15 R. L. 422, 7 Atl. R. 403, 2 Am. St. R. 908. |
