Wentworth v. Woodside

Peters, C. J. The plaintiff and defendant exchanged horses on the Lord’s day, the defendant agreeing to pay fifty dollars for the difference in value between the animals. The action is to recover the fifty dollars, the defendant not returning nor offering to return the horse which he received from the plaintiff. The action may be sustained. The statute seems to be completely applicable, which declares that "no person who receives a valuable consideration for a contract, express or implied, made on the Lord’s day, shall defend any action upon such contract on the ground that it was so made, until he restores such consideration.” The whole consideration received by the defendant is, still in his hands. He cannot retain it and avoid his contract. It is urged that he cannot safely make restoration — that by doing so he might lose the horse which the plaintiff received from him. But the statute is exacting — unconditional. It matters not that the defendant cannot restore, or profitably or safely restore. If he does not in fact restore he cannot defend. There may be many cases where a defendant cannot restore the consideration received. It may have passed into other hands, or gone into other form, or been consumed or lost. And cases may often arise, as in this case, where a defendant is unwilling to take the [159] risk to restore. But for all such cases was the statutory requirement intended. The statute is broad and remedial and should be liberally construed, to prevent fraud or injustice. The argument of counsel would seem to imply that the law was enacted to protect a defendant. It is for the public protection, treating parties fairly, alike. It must be borne in mind, looking at the just and equitable view of the transaction, that the worst which can befall a defendant who fails to make the restoration required of him, will be to perform his contract, which though made on Sunday, is presumed to have been as carefully made as if on any other day. Exceptions overruled. Walton, Virgin, Libbey, Emery and Haskell, JJ., concurred.