Foster v. Wooten

Woods, C. J., delivered the opinion of the court. The evidence showed quite clearly that the sale of the stock by L. D. Lewis to A. F. Foster, occurred on Friday. The execution of the bill of sale on the Sunday following was not the consummation of the sale : it was only the manufacture of the evidence of the antecedent sale. If we shall concede, however, that this sale took place on Sunday, we will still be constrained to hold that the third instruction for the plaintiff in attachment was improperly given. Any charge to the jury, considered as a mere abstract proposition, could not rightfully influence the verdict, looking at the uncontroverted facts of the case. This was an executed contract; the stock had been delivered to A. F. Foster, and the purchase-price paid by him to L. D. Lewis, long before the attachment writ was levied. Grant, then, that the sale was made on Sunday, what is the rule of law on such state of facts? Nothing more than absolute nom action. It will give neither party to the contract any assistance, nor listen to any complaint. It will leave the parties where it finds them. That is the extent of the rule. It cannot be reasonably insisted that the seller of the stock, L. D. Lewis, could have made [544] any maintainable appeal to any court for the annulment of the trade, and the recovery of the stock. Equally in fault with the buyer, A. F. Foster, the law would decline to afford him any countenance, leaving him just where it had found him, and where his own act had placed him. With what show of reason can it be contended that the attaching-creditor of Lewis could take any step for the assertion of any claim to the stock, thus wrongfully sold on Sunday, which Lewis himself could not take ? But this whole question has been too long and too firmly settled to be now disturbed. Neither Lewis, nor the attaching-creditor could dispossess the Sunday purchaser, or any purchaser under him. See Block v. McMurry, 56 Miss. 217, and cases there cited. It follows, therefore, that the third instruction of the court below for plaintiff in attachment, to the effect that sales of personal property made upon Sunday are void and pass no title to the property, was erroneously given, and was misleading. Granting.its correctness in the abstract, in the concrete it was eminently and unwarrantedly prejudicial to the claimant on the trial of this issue. It was doubtless regarded by the jury, and with reason, too, as informing them that the Sunday sale from L. D. Lewis to A. F. Foster being void, and as no title had passed thereby, that the title to the stock levied upon was still in said Lewis, and that said stock was therefore to be subjected to plaintiff’s demand, and the issue found against the claimant, the sub-purchaser. This was altogether misleading. The proposition (though it was not the fact, as shown by the evidence) that the sale of the stock was made by L. D. Lewis to A. F. Foster on Sunday, had absolutely nothing to do with the case. The contention of appellant as to the amount of the verdict, is likewise well taken. The jury returned a verdict for the full value of all the horses, though it was undisputed that the two best animals had died, pending the litigation, without fault on the part of claimant. The court partially remedied this error of the jury by requiring a remittitur of the price of one of the deceased animals, but appears to have taken no account of the other horse, shown to have died. The verdict therefore remained excessive. Reversed.