Ball v. Powers

Bleckley, Justice. 1. The drafts were negotiable paper, and bore date upon a day of the month corresponding to Saturday. If they were in fact executed on Sunday, they were void as between the original parties; and that they were thus void might be shown, also, against any holder affected with .notice. But if Ball purchased them before maturity, and took them for a valuable consideration, in the due course of trade, and without notice of their immoral taint, the acceptor, having accepted upon Sunday, with no correction of the false date, and no indication of the true time of the acceptance, is estopped from urging in defense of a suit against him by Ball that the drafts were drawn and accepted on Sunday. If, indeed, as is pleaded and attempted to be proved, Ball’s contract of purchase was also a Sunday contract, then it was not in the due course of trade, and he would not be protected. Sunday is not a day for conducting trade in its due [763] course; and dealing upon that day, in negotiable paper in ordinary business, so far from being favored, is a breach of the penal laws. Ball testifies that his title is pure; and if it is, there is a manifest justice in holding the acceptor to the date of the drafts, whether the date be true or false. This does not trench upon the rule that a Sunday contract is void; it only excludes the acceptor from treating these drafts as Sunday contracts after he has given currency to them as Saturday contracts, and with no timely disclosure that they were other than what they purported to be. It makes their date conclusive evidence that they were Saturday contracts, and not Sunday contracts. The defense that a party’s own act is void may be outlawed by the doctrine of estoppel, to protect innocent purchasers and prevent fraud. The term void, does not always import utter nullity. See Sutton vs. Aiken, this term. 2. The court did not err in instructing the jury on the effect of notice to Ball, although there was no plea expressly alleging such notice. Ball himself went into the question of notice in his testimony, denying that he had any. There were circumstances tending to show that he had, and we take it for granted that these were urged in argument. The plea of the general issue was in, and if the plaintiff thought proper to moot the question of notice by his own evidence, the defendant could meet him on that plea alone. If the plaintiff had wanted to keep down the question of notice, until it was pleaded specially, he should have introduced no evidence directly upon the point. Doubtless, correct pleading under our system would require that notice should be alleged, and because it was not alleged, the defendant may not have had the right to go into it if the plaintiff had kept out. But after the plaintiff had gone in, the defendant had a right to follow, and the court, seeing them both in, might well bring up the rear with an appropriate charge on the subject. 3. The Code is express that if there are several pleas the verdict, when for the defendant, should specify some one [764] or more, or else be rendered upon all. A mere general finding for the defendant is not a strict compliance with this provision, for .the jury ought to say that it is upon all the pleas, or else that it is upon certain of them, pointing these out. The charge of the court was in conflict with this provision, and so was the verdict, construed in the light of the charge. The matter is presented pretty fully in the third head-note, and is plain enough to need no elaboration. 4. While we rule that the form of the veidict, together with the instructions from the bench which dictated the form, is cause for a new trial, we are not to be understood as holding that a new trial would follow if the instructions had been correct. Much less can we hold that there was error in overruling the motion in arrest of judgment. Judgment will not be arrested where it is'clear that the jury meant to defeat the plaintiff’s action, and nothing is more clear than this in the present case. Where the court has not told the jury how to shape their finding, and the verdict ought to specify one or more of the pleas, or else be based expressly on them all, the proper practice is to move to remand the jury for the purpose of making the verdict speak with proper fullness. But where the court has instructed, and the jury have obeyed, counsel may be silent and then ask for a new trial. Judgment reversed.