Boynton v. Page

By the Court, Sutherland, J. The question is, who has the better title to the property replevied, Page or Boynton ? The validity of the sale or transfer from Strong to page of his interest in this property, made in Canada, is objected to on two grounds: 1. As having been made on Sunday, and 2. As being void within the statute of frauds, not having been in writing. Judicial proceedings upon Sunday are prohibited by the common law. Any other business can lawfully be done upon that day, except so far as it is prohibited by statute. Our statute in relation to the observance of Sunday declares, that “No person shall expose to sale any wares, merchandises, fruit, herbs, goods or chattlels, on Sunday, except meats, milk and fish, which may be sold at any time before nine o’clock in the morning.” 1 R. S. 676, § 71. This prohibition is evidently directed against the public exposure of commodities to sale in the street, or in stores and shops, warehouses or market places. It has no reference to mere private contracts, which are made without violating or tending to produce a violation of the public order and solemnity of the day. Every man is permitted, in those respects, to regulate his conduct by the dictates of his own conscience. The act of 29 Charles 2, ch. 7, § 1, enacts that “ No tradesman, artificer, workman, colorer, or other person whatever, shall do or exercise any worldly labor, business or work, of their ordinary callings, upon the Lord’s day.” The construction given to this statute has been, that it prohibits only the prosecution of a man!s ordinary secular business upon the Lord’s day. The terms, of their ordinary call [430] ing, have been held to qualify and restrict the general phraseology which precedes them. Thus, in Drury v. Defontaine, 1 Taunt. 131, it was held that the sale of a horse on Sunday, by private contract, by a horse dealer, whose ordinary business or calling was to sell horses at auction, was not prohibited by the statute. Mansfield, Ch. J.,says, “To bring this case within the act, we must pronounce that either Drury or Hull worked within their ordinary callings on the Sunday. But the sale of horses by private contract was not Drury’s ordinary calling, nor was it Hull’s. His calling was that of a horse auctioneer, and he was not within his ordinary calling in selling this horse by private contract.” The same doctrine was held in Bloxsome v. Williams 3 Barn. & Cres. 232, 10 Com. L. R. 60, and in The King v. The Inhabitants of Whitnash Barn. & Cres. 596, 14 Com, L. R. 100. In this last case it was held that a contract of hiring, made on a Sunday between a farmer and a laborer for a year, was valid, and that a service under it conferred a settlement. In Massachusetts, a note given on Sunday is not void ; in Connecticut it is—the phraseology of their statutes being different. Geer v. Putnam, 10 Mass. R. 312. The ancient and modern cases upon this subject are all .referred to in Story v. Elliott, 8 Coiven, 27, where it was held that an award made on Sunday was void, being a judicial proceeding; but that all other acts are lawful on that day, which are not prohibited by statute. Vide also Sayles v. Smith, 12 Wendell. 57. This objection, therefore, is not well taken. Nor was the contract within the statute of frauds. Strong had no interest in any thing but the saddler’s work remaining in the shop. The umvrought stock had been delivered over to Clark. Of the saddler’s work, he owned one third only, and Page two thirds. The whole amount is shown to have been worth but $100. If the agreement between Strong and Page, in Canada, is to be considered a sale of Strong’s interest in the saddler’s work to Page, it was for an amount or price less than $50, and was therefore not within the 3d section of the statute. 2 R. S. 136, § 3. There was no delay in the delivery "or transfer of the possession, which could bring the case within the 5th section of the act. Strong having abandoned the possession of the [431] goods, 1 am inclined to think Page had. a right, from his terest in the matter, to take immediate possession of them, without any authority from Strong. But Strong’s interest of course would have remained subject in his hands to the claims of his creditors, if it had not been transferred to Page. I think it was a valid transfer, and vested in Page the whole title. Clark was not objected to as a witness upon the trial, and the objection is now to late, if it were well taken. But all the facts testified to by him were proved by other witnesses. It is very questionable whether he had any interest which would have' rendered him incompetent. A portion of the property attached by Boynton and replevied by Page, called the unwrought stock, had been delivered over to Clark as Strong’s successor, and was in that manner in his possession. But it was immaterial to him whether he retained that stock or not, as Page was bound to furnish him with all the leather and other stock required in his business. The value of this stock was about $19, and it is objected that as to this at least Page had shown no title, and cannot recover; that the possession and title were in Clark. The stock, I am inclined to think, until operations were commenced upon it and the process of working it up was begun,.may be considered as Page’s or at all events he must have had a joint right with Clark to control it. It is not for the defendants, upon the present state of the pleadings and under the circumstances of the case, to deny his right to recover that portion of the property, on the ground that the title and possession were in Clark. Upon the merits, therefore, the judgment below is correct. But the record is said to be defective. The defendant pleaded first, non cepit, and then several special pleas, alleging the title to the property to have been in Strong, and avowing and justifying the taking under an attachment. To these pleas the plaintiff replied, taking issue upon them. The jury have found simply that the defendant did take and detainthe said goods and chattels of the said plaintiff, in manner and form, &c. and assess his damages at six cents ; but they take no notice whatever of the other issue. This verdict is undoubtedly defective, and leaves the question of title to the property, undisposed of. The plaintiff cannot, upon such a [432] finding, have a general judgment in his favor. The case of Bemus v. Beekman, 3 Wendell, 667, is precisely in point. The defect existed in that case, and the judgment of this cour(. vvas reversed in the court óf errors upon that ground. Law v. Merrills, 6 Wendell, 272. It appears from the bill of excepqong jn this case, which is attached to the record, that all the issues were in fact found for the plaintiff. But the finding of the jury is not properly a part of the bill of exceptions, and the record cannot be helped by it. The judgment must therefore be reversed, and a venire de novo must issue. Judgment reversed.