Lippert v. Garrick Theater Co.

KeRWIN, J. There is no bill of exceptions in tbis case, and tbe only question here for review is whether the pleadings support tbe judgment. Tbis involves consideration of tbe contract set up in tbe complaint as tbe basis of tbe plaintiff’s cause of action. It is insisted by appellant that tbis contract is void under sec. 4595, Stats. (1898), wbicb prohibits certain labor, business, or work on tbe first day of tbe week, ■commonly called Sunday. Tbe contract was executed on July 31, 1907, and provided that tbe term of service should -commence on tbe 26th day of August, 1907, and that tbe salary commence on September 1, 1907, and continue for a period of forty weeks, payable weekly. Tbe plaintiff entered upon tbe performance of tbe contract August 26th and ■continued to work under it until November 30, 1907, and was paid for all services up to that date. Neither tbe 31st of July nor tbe 26th of August, 1907, was Sunday, but September 1st was, and it is insisted that because tbe salary, by tbe terms of tbe contract, was to commence on Sunday tbe contract was void. There are several reasons why tbis contention cannot be sustained. In tbe first place tbe contract does not provide that any services shall be performed on September 1st. It provides that tbe salary shall be paid weekly and ■shall commence September 1st. A construction cannot be placed upon a contract wbicb will render it void and unlawful when capable of one wbicb will render it lawful and valid. 'Moreover, tbis court has held that although some acts be done under a contract on Sunday it is not void if it be carried out ■on a secular day. King v. Graef, 136 Wis. 548, 117 N. W. 1058. And even a Sunday contract may by a subsequent [416] promise to carry it out, or by acts done in performance of it, be validated. Melchoir v. McCarty, 31 Wis. 252; Williams v. Lane, 87 Wis. 152, 58 N. W. 77; Hopkins v. Stefan, 77 Wis. 45, 45 N. W. 676; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Sentinel Co. v. A. D. Meiselbach M. W. Co., ante, p. 224, 128 N. W. 861. There is no question here of claim for services performed on Sunday. The' contract was made on a secular day and performed by both parties until long after September 1st, namely, November 30 th. There is no doubt, under the decisions of this court and the facts established by the pleadings, but that the contract was valid, and therefore the judgment below cannot be disturbed. By the Court. — The judgment of the court below is affirmed.