Brewster v. Banta

The opinion of the court was delivered by Depue, Chief Justice. The declaration contains only the common counts. Annexed to it is a notice, pursuant to the statute, that the action was brought to recover the amount due on a promissory note, dated November 7th, 1898, made by Demarest Banta and endorsed by Harvey D. Banta. The defence was that the note in question was made on Sunday, and that it was given in payment of the difference on an exchange of horses concluded on that day, and was therefore void. The case was tried in the Bergen Circuit by the court, without a jury. The court directed a nonsuit as to Harvey Banta and found in favor of the plaintiff as against Demarest Banta. The judge held that the Sunday transaction was wholly illegal, and a nonsuit as to Harvey Banta was directed on the [369] ground that he had no connection with the transaction, except in the endorsement of the note. The finding against Demarest Banta was made on the ground of an express promise made by him to the plaintiff to pay the debt after the note was given, which the learned judge decided was binding upon him. The law regulating this subject is conclusively settled in the series of eases beginning with Reeves v. Butcher, 2 Vroom 224. In the first of these cases the Supreme Court held that the statute forbidding worldly employment or business on Sunday rendered void every transaction which, if performed on a weekday, would be enforceable in a court 'of justice; that such a transaction, being wholly void, could not be validated by ratification; but that the consideration emanating from the tainted contract will be sufficient to form the foundation for a new express promise, on which recovery might be had. Reeves v. Butcher, supra; Ryno v. Darby, 5 C. E. Gr. 231; Cannon v. Ryan, 20 Vroom 314. The trial court found, as a question of fact, that, so far as Demarest Banta was concerned, there had been an express promise to the plaintiff to pay the debt. In the trial of an issue before the court, a jury being waived, pursuant to section 176 of the Practice act {Gen. Stat., p. 2562), the court is substituted for the jury, and its findings on questions of fact cannot be reviewed on writ of error; all that can be reviewed is the sufficiency of the facts found to support the judgment. Columbia Delaware Bridge Co. v. Geisse, 9 Vroom 39, 580; City of Elizabeth v. Hill, 10 Id. 555; Blackford v. Plainfield Gas Light Co., 14 Id. 438. In this ease there was evidence of a subsequent express promise to pay the note, and the trial judge so found. That decision cannot be called in question. The judgment should be affirmed.