Hamilton v. Gridley

Morgan, J. It is conceded that by the laws of Pennsylvania, and under the decisions of the courts in that state, the original agreement between the parties was void, and could not be enforced, it having been executed" on Sunday. But the defendant resists the recovery in this action upon the grounds, (1.) That such a contract is incapable of ratification by a subsequent paroi agreement to perform it; and (2.) If it is capable of ratification, then the complaint should count upon the new agreement, and not upon the original contract. It is certain that the recovery in this case depends upon the transaction of the 1st of February, 1866, when the defendant required and obtained from the plaintiff a conveyance of the property, and actually agreed to pay him for it $1000, the consideration price mentioned in the original written contract. This was not in strict compliance with the written contract, as the time had already elapsed when the conveyance was to be executed and the consideration paid. But, without doubt, it was competent for the parties to waive these conditions, and enter into a new arrangement, which would impose upon both partiés the obligations assumed by them in the original contract. This was effectually accomplished so as to bind the defendant, when he afterwards accepted the conveyance and assumed to pay the consideration. , In Grass v. Whitney, (27 Vt. Rep. 272,) it was ruled that although a note is made and delivered on Sunday, and [548] therefore .void; yet a promise to pay it on a subsequent day is good, and may be enforced. (And see Adams v. Gay, 19 Vt. Rep. 358.) Such a contract, though made on Sunday, is not void at common law, (Sherman v. Sherman, 27 Penn. Rep. 90;) and being made void by operation of the statute, it is capable of subsequent ratification. Under the English statute, which is similar to the Pennsylvania statute, it was held in Williams v. Paul, (6 Bing. 653,) that where the defendant, who had bought some cattle of the plaintiff, a drover, on a Sunday, kept them and afterwards promised payment, he was liable on a quantum meruit. The rule is laid down in the elementary books- as follow's: “ If the owner subsequently to the void sale demands on a week day either the goods or the price, and the intended purchaser then promises to pay for them, á new and valid contract of purchase and sale arises between the parties, which may be enforced by action.” (Addison on Cont. 112.) The only other question raised by the defendant’s exception which deserves attention is, that the action is founded upon the original void contract and not upon the subsequent agreement' to carry it into effect. By referring to the' printed case it will be seen that the plaintiff proved, without objection, the original contract purporting to be made on the 25th of August instead of Sunday the 26th, and followed it up by reading in evidence the conveyance which that contract called for, except that it bore date February 1, 1866; and then the plaintiff testified, without objection, to the subsequent agreement on the part of the defendant to pay the $1000 on the first of' April, 1865. By the provision of the Code of Procedure, sections 169, 171, 172, and 173, variances between the allegations of the complaint and the evidence are of no great importance; and the objection, to be available, should be distinctly made at the trial. Even under the former system of plead [549] ings and practice, it was decided that the proper time to object to evidence on account of variance, is when it is offered on the trial. If the question had been raised upon the trial, when the evidence was offered to prove a subsequent agreement, not set out in the complaint, similar to the original contract, no doubt it would have been competent for the referee either to allow an amendment of the complaint, or if his power to do that is denied, he could have adjourned the trial to give the plaintiff' an opportunity to apply to the court for that purpose. How I think when there is no pretense that the defendant was misled to his prejudice, the referee was right in disregarding the variance, and if necessary the court will, even after judgment, conform the pleadings to the facts proved. The objection, in this case, was not to the evidence of a .new agreement, substantially repeating the original agreement set out in the complaint, but after the evidence was all in, the defendant objected that no recovery could be had upon the new agreement, it not having been counted on in the complaint. In my opinion this objection came too late. To be available at that stage of the action, it must appear that the cause of action is unproved in its entire scope and meaning. (Code of Procedure, § 171.) This is not such a case. As the final conclusion of the referee was right, it is not important that we should hold, with him, that the subsequent transaction between the parties constituted an affirmance or a re-execution of the original contract so as to make the orignal contract valid. It is enough to say that the new agreement was valid and binding upon the defendant, and that no objection was taken to proof of it on the trial. Both agreements were substantially the same, and if the plaintiff' had not substantially averred that it was in writing, there would be no plausible grounds for saying that it was even a case of variance. [550] [Onondaga General, Term, June 30, 1868. The motion for a.new trial should be denied, and the judgment affirmed. Foster, J., concurred.