$290. Sunday Contracts. The common law makes no distinction between Sundays and week days in the making and the performance of agreements.1 But in England in the reign of Charles II a statute was passed prohibiting the doing of certain things on the Lord's day and similar statutes are in force in most of our states. The phraseology of the particular statute is important for they are not at all uniform in their terms. Many of them prohibit "work or labor" on Sunday and under such statutes an agreement to do work or labor on Sunday whether entered into on Sunday or on a week day would be illegal, because it requires or provides that something prohibited by the statute should be done on Sunday.2 But as to agreements made on Sunday to be performed on a week day there is much confusion in the decisions caused by the differing phraseology of the statutory provisions in the different States and the conflicting opinions of the judges in construing the meaning of the particular words and phrases therein used. Where the statute expressly prohibits the making of agreements on Sunday, there is no question that an agreement made on Sunday is void. But very few of the statutes do this. Hence when the words of the statute are that no "work or labor" is to be done on Sunday, this according to the best authorities does not make illegal the signing of a promissory note or a mortgage or the entering into any other agreement on the Lord's day.3 1 Tucker v. West, 29 Ark. 386; Kepner v. Keefer, 6 Watts, 231, 31 Am. Dec. 460; Adams v.Gay, 19 Vt. 365; Bloom v. Richards, 2 Ohio St. 387; Amis v. Kyle, 2 Yerg. 31, 24 Am. Dec. 463; Brown v. Browning, 15 R. I. 422, 2 Am. St. Rep. 908; Swann v. Swann, 21 Fed. Rep. 299; Batsford v. Every, 44 Barb. 618; Richmond v. Moore, 107 Ill. 429; Moore v. Clymer, 12 Mo. (App.) 11; Hellams v. Abercombie, 15 S. C. 110, 40 Am. Rep. 684; Horacek v. Keebler, 5 Neb. 355; 2 Handy v. St. Paul Pub.Co., 41 Minn. 188; Smith v. Wilcox, 24 N. Y. 353, 19 Barb. 581, 25 Barb. 341; Bernard v. Lupping, 32 Mo. 341; Watts v. Van Ness, 1 Hill. 76. 3 Bloom v. Richards, 2 Ohio St. 387; Kauffman v. Ham, 30 Mo. 387; More v. Clymer, 12 Mo. (App.) 11; Roberts v. "The idea of toil, of that which does or may produce weariness, is inseparable from the idea conveyed by the word labor, or, more strictly speaking, is included in the idea it conveys. But what toil, what weariness of the body or mind, is there in making half the contracts that are made. A meets B and says to him, 'I will give you fifty dollars for your horse.' B replies, 'Agreed.' Here is a contract made in ten seconds, and in ten words-but where is there any labor? C makes his promissory note, or bond, or due-bill, to D; who would think of calling the transaction laborious? The word 'labor' is usually employed to signify manual exertion of a toilsome nature. This is its ordinary, popular significaton; the meaning that must be given to it, wherever it occurs in a statute, unless it is plainly used in a more enlarged or restricted sense That it is not used in its most enlarged sense, in our statute, is obvious. Mere thought may be so earnest and long-continued as to be laborious, but no one would think of punishing a man simply for thinking. To compose and write an ordinary letter of friendship is no small task to many persons, but surely it is not 'common labor,' though it is a very common occurrence. The study of mathematics or metaphysics is often called 'hard work,' but it may, nevertheless, be performed on Sunday. There is a limit, then, and what better limit can be found than that furnished by the common understanding if the phrase 'common labor.' . . . Will it be said that written contracts are embraced by it because writing is a manual labor? The fact is not so in a large majority of cases. By far the most numerous written agreements are promissory notes. To write such a note requires some manual exertion, but no labor, in the proper or common significaton of the word. Nor is it to be supposed that the legislature intended to discriminate between these contracts, and allow the verbal and forbid the written, or to make the validity of a contract depend upon whether it is long or short. There would be no good sense in such discriminations, and a thing so irrational is not to be admitted. It is not to be understood, however, that because a Sunday contract may be valid, therefore business may be transacted upon that as upon other days; as, for instance, that a merchant, not of the excepted class, may lawfully keep open store for the disposition of his goods on the Sabbath. To wait upon customers, and receive and sell his wares, is the common Barnes, 127 Mo. 415; Merritt v. Earle, 29 N. Y. 117; Moore v. Murdock, 26 Cal. 514; Richmond v. Moore, 107 Ill. 429, 47 Am. Rep. 445; Horacek v. Keebler, 5 Neb. 355. But see Contra, Reynolds v. Stevenson, 4 Ind. 619, 322; Cranson v. Goss, 107 Mass. 439; Costello v. Ten Eyck, 86 Mich. 348; Troewert v. Decker, 51 Wis. 46: Tucker v. West, 29 Ark. 386. A contract of marriage on Sunday is valid. Ben nett v. Brooks, 9 Allen 118. See Gangwere's labor of a merchant, and there is a broad distinction between pursuing this avocation and the case of a single sale out of the ordinary course of business." 114 Where the statute forbids the exercise of ones "ordinary calling" on Sunday to make a note or deed or other agreement on Sunday is not illegal if it is outside the sphere of his usual business. So to hire a servant on Sunday is not within this phrase nor is the sale of goods on that day by one not a merchant or trader. In an early case, D who was a banker sent his horse to H who kept a stable for the sale of horses by auction; H sold the horse to the defendant on Sunday by private sale. It was held that the sale was valid, the court saying: "To bring this case within the act, we must pronounce that either D or H worked within their ordinary callings on the Sunday. But the sale of horses by private contract was not D's ordinary calling, nor was it H's: his calling was that of horse auctioneer, and he was not within his ordinary calling in selling this horse by private contract." $291. Works of Necessity or Charity. The statutes generally except acts or works of necessity or charity. "By the word 'necessity,'" it is said, "we are not to understand a physical and absolute necessity, but a moral fitness or propriety of the work and labor done under the circumstances of any particular case." Therefore an agreement for the relief of a sick pauper;2 or to preserve property exposed to imminent. danger; or to assist in the building of a church; or to 991 4 Thurman, J. in Bloom v. Richards, 2 Ohio St. 387, 5 Sanders v. Johnson, 29 Ga. 576; Allen v. Gardner, 7 R. I. 22; Schneider v. Sansom, 62 Tex. 201, 50 Am. Rep. 521. 6 King v. Inhabitants, 7 B. & C. 596. 7 Merritt v. Earle, 31 Barb. 38; Milis v. Williams, 16 S. C. 593; Moore v. Murdock, 26 Cal. 514. 8 Drury v. Defontaine, 1 Taunt. 131. 1 Flagg v. Millbury, 4 Cush. 243. 2 Aldrich v. Blackstone, 128 Mass. 148. 3 Whitcomb v. Gilman, 35 Vt. 297; Parmelee v. Wilks, 22 Barb. 539. 4 Allen v. Duffie, 43 Mich. 1, 38 Am. Rep. 159; Dale v. Knepp, 98 Pa. St. 389, 42 Am. Rep. 624. Contra. Carlett v. Trustees, 62 Ind. 365, 30 Am. Rep. 197. secure decent burial for one's wife, and to secure the presence of relatives at her funeral; or to convey property by a person suffering from serious injuries would come within these words of exception. But publishing and circulating a newspaper on Sunday is not a work of necessity: "The newspaper is a necessity of modern life and business, but it does not follow that to issue and circulate it on Sunday is a necessity. There are a great many other kinds of business just as necessary; many, indeed most, kinds of manufacture and mercantile business are indispensable to the present needs of men, but no one would say that, because necessary generally, the prosecution of such business on Sunday is a work of necessity. That carrying on any business on Sunday may be profitable to the persons engaged in it; that it may serve the convenience or the tastes or wishes of the public generally-is not the test the statute applies. To continue on that day the sale of dry goods or groceries, or the keeping open of markets, saloons, theaters, or places of amusement, might be regarded by many as convenient and desirable, but that would not bring such business within the exception in the statute."" Though the agreement made on Sunday may be void yet a party to it cannot set up its illegality against an assignee without notice. Thus the assignee of a non-negotiable instrument or the holder of a bill or note dated on a week day cannot be met by the defense that it was actually made on Sunday. This is on the ground of estoppel.9 $292. Agreements Partly Made on Sunday. An agreement not finally executed on Sunday is not void because some of its terms may have been agreed to 6 Gulf, etc., R. R. Co. v. Levy, 59 Tex. 542. 7 Donovan v. McCarthy, 34 Cent. L. J. 170 (Mass.). 8 Handy v. St. Paul Co., 41 Minn. 188. Johns v. Baily, 45 Ia. 241; Leightman v. Kadetska, 58 Ia. 676, 43 Am. Rep. 129; Ball v. Powers, 62 Ga. 757; Heise v. Bumpass, 40 Ark. 575; Cranson v. Goss, 107 Mass. 439, 9 Am. Rep. 45; Knox v. Clifford, 38 Wis. 651, 20 Am. Rep. 28; Beman v. Wessels, 53 Mich. 594. [PART I. on that day;1 as for example an agreement made on Sunday and carried into effect on a week-day;2 or a note signed on Sunday, but not delivered until a weekday; or a sale of goods agreed upon on Sunday, and the goods selected and set apart, the delivery being made on Monday. or an insurance policy delivered on Monday, though the property was examined and the amount of insurance agreed upon on a Sunday." $293. Rescission and Ratification. An agreement which could not be lawfully made on Sunday cannot, if lawfully made, be rescinded on that day.1 As to whether a contract made on Sunday, and therefore void, can be ratified by a subsequent agreement, there is a conflict in the decisions; a large number of them holding that a ratification may be made;2 a few of them that it may not.3 (b) AGREEMENTS IN BREACH OF COMMON LAW RULES. $294. Introductory. An agreement whose object is forbidden by the common law because it is either 1 Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605; Dickenson v. Richmond, 97 Mass. 45; Bryant v. Booze, 55 Ga. 438; Gibbs Manfg. Co. v. Brucker, 111 U. S. 597; Luebbering v. Oberketter, 1 Mo. App. 393; Beitenman's Appeal, 55 Pa. St. 183; Butler v. Lee, 11 Ala. 885, 46 Am. Dec. 231; But see Allen v. Deming, 14 N. H. 133, 40 Am. Dec. 179; Foreman v. Ahl. 55 Pa. St. 325; Bradley v. Rea, 14 Allen, 20. 2 Taylor v. Young, 61 Wis. 314. 3 King v. Fleming, 72 11. 21, 22 Am. Rep. 131; Hilton v. Houghton, 35 Me. 143; Hill v. Dunham, 7 Gray, 543; Adams v. Gay, 19 Vt. 358; Lovejoy v. Whipple, 18 Vt. 379, 46 Am. Dec. 157; Burns v. Moore, 76 Ala. 339, 52 Am. Rep. 332. 4 Rosenblatt v. Townsley, 73 Mo. 536. a criminal offense or a 5 Wolliver v. Ins. Co., 104 Mich. 132, 62 N. W. Rep. 149. 1 Benedict v. Bachelder, 24 Mich. 425, 9 Am. Rep. 130. 2 Adams v. Gay, 19 Vt. 358; Melchoir v. McCarty, 31 Wis. 256, 11 Am. Rep. 605; Tucker v. West, 29 Ark. 386; Gwinn v. Simes, 61 Mo. 335; Winchell v. Carey, 115 Mass. 560, 15 Am. Rep. 151; Wilson v. Milligan, 75 Mo. 41; Parker v. Pitts, 73 Ind. 597, 38 Am. Rep. 155; Tennent Shoe Co. v. Roper, 94 Fed. Rep. 739. 3 Plaistead v. Palmer, 63 Me. 576; Day v. McAllister, 15 Gray, 433; Kountz v. Price, 40 Miss. 341; Acme El. Co. v. VanDerbech, 86 N. W. Rep. (Mich.); Riddle v. Keller, 48 Atl. Rep. 818 (N. J.). |