Sayles v. Wellman

Potter, J. On the trial of this case, the judge charged the jury that if the contract was made on Sunday and reaffirmed afterwards the plaintiff might recover, and to this charge exception is taken. The plaintiff sold and delivered to defendant on Sunday a pair of horses for $340. On Tuesday following he paid $200, and gave a note for $140, which is now sued. Defence that contract was made on Sunday, and no action can be sustained, and that no subsequent promise can avail. The English statute on this subject is that of Charles 2, chap. 7, § 1: No person “ shall do or exercise any worldly labor, business, or work of their ordinary callings upon the Lord’s day or any part thereof (works of necessity and charity only excepted).” Our Rhode Island statute is as follows : If any person shall do or exercise any labor or business or work of his ordinary calling, or use any game, &e., &c., on the first day of the week .... .works of necessity and charity only excepted, .... he shall be fined, &c. Rev. Stat. chap. 216, § 16. It will be noticed that so far as affects this case our statute is *468 almost an exact transcript of the English. It is entirely different from all the Sunday laws of other states, excepting that of New Hampshire, which more nearly resembles it. Under the English statute any person may do business on Sunday provided it be not in his ordinary calling. See cases cited in Boynton v. Page, 13 Wend. 425, 429; and in Story v. Elliot, 8 Cowen, 27; and by C. J. Redfield in Adams v. Gay, 19 Vt. 358, 365. In the present case it is admitted that the plaintiff’s ordinary occupation was training, buying, and selling horses. If the contract was entirely void so far as made on Sunday, then the property of the horses remained in the original owner and was not changed by it. Ladd et al. v. Rogers, 11 Allen, 209. There are 'some opinions to the contrary, but we think there is sound sense in the opinion of the court in Adams v. Gay, 19 Vt. 358, where in a very able opinion by C. J. Redfield, the court held that contracts on Sunday are distinguished from other illegal contracts to secure an immoral end or for an immoral consideration, — being illegal only as to time, not tainted with any general corruption (371), and may be affirmed afterwards ; that the rule should be so administered (369) as not to leave it in the power of the reckless and irreligious to circumvent and defraud the unwary under the guise of the sacredness of the time, and not to allow the dishonest to retain possession of what they may get from such contracts and release them from liability, all which would produce infinite mischief. “ Where either party has done anything under the contract .... he may demand restitution. . . . or compensation,” and thus put the other party to his election. If he declines restitution or compensation, this should be held to affirm the contract. In that case the defendant having insisted on retaining the fruits of his fraud, was held to have reaffirmed the fraud. If he seeks through his own desecration of- the day to obtain a benefit without compensation, he becomes the oppressor. In Williams v. Paul, 6 Bing. 653, the defendant bought a heifer on Sunday, but kept it and afterwards promised to pay for it. Held liable. In the subsequent case of Simpson v. Nichols, 3 M. & W. 240, defendant pleaded sale was on a Sunday, and plaintiff replied that defendant kept the goods for his own use, but did- not aver any subsequent promise. The replication was *469 held bad. But this seems to have been only on the ground that no subsequent promise was averred. In Sargeant v. Butts, 21 Vt. 99, there was a subsequent promise. In Sumner v. Jones, 24 Vt. 317, keeping the property and part payment was held to be a ratification. In Banks v. Werts, 13 Ind. 203, it was held sufficient that, subsequently to the Sunday on which the contract was made, the parties had acted on it as valid, and there had been a part payment. We think that as the contract is invalid only on account of the time, reason and the weight of authority are in favor of allowing a ratification, more especially where the defendant retains the property. And either on the ground of ratification or of a new promise, for which the retention of the property would be a sufficient consideration, the plaintiff is entitled to recover. Exceptions overruled.