14 N.H. 133 (N.H. 1843), Allen v. Deming

Citation:14 N.H. 133
Opinion Judge:GILCHRIST, J.
Party Name:ALLEN v. DEMING.
Attorney:Carleton, for the defendant. Morrison, for the plaintiff. Wilcox, in reply,
Court:Superior Court of New Hampshire
 
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Page 133

14 N.H. 133 (N.H. 1843)

ALLEN

v.

DEMING.

Superior Court of Judicature of New Hampshire.

August, 1843

Page 134

The execution and delivery of a promissory note on Sunday, is "business" of a person's "secular calling," and as such is prohibited under a penalty, by the act of December 24th, 1799, and the note is void.

Whether a note given for the price of goods bought on Sunday be void in the hands of an innocent indorsee, quœ re?

An action cannot be maintained if it have no other foundation than a contract made on Sunday.

The defendant bought a quantity of shingles on Sunday, and at the same time gave his promissory note to the seller for a part of the price. He permitted the shingles to remain with the seller for about a month, and then took them away. --Held, that the contract was complete on Sunday, and was void.

Where a party purchases goods on Sunday, and takes possession of them on a subsequent day, whether he is liable for their value on a quantum meruit, quæ re?

ASSUMPSIT upon a promissory note, dated on the 31st day of March, 1838, made by the defendant, payable to one Ira Coffin or order, and by him indorsed.

It appeared in evidence that the note was given for a part of the purchase money for a quantity of shingles; that the contract for the shingles was made on the Sabbath, and the note executed and delivered on the same day, but dated on the day previous. The shingles were at Coffin's, where they remained for about a month, when the defendant took them away and sold them.

The defendant contended that the note, being made on the Sabbath, was void and incapable of ratification, and that, being void, no indorsement of it could vest a right of action in an indorsee. But the court instructed the jury that the acts of the defendant in taking and selling the shingles on a subsequent day were a ratification of the contract, and that he could not after that avoid the note because it was made on the Sabbath.

The jury returned a verdict for the plaintiff, and the defendant moved for a new trial.

Carleton, for the defendant. The note is void. N. H. Laws 167; 4 N.H. 153. And it cannot be ratified; 5 N.H. 196. The remedy, if any, is for the value of the shingles. 3 N.H. 349; 7 N.H. 368.

Morrison, for the plaintiff. In this case, what took place subsequent to the making the note amounts to a confirmation of it. The statute is not designed to affect the contract and declare it void, but only to point out the time when it may be made. Even if the note may be void as between the parties, it is not so in the hands of an indorsee. 8 N.H. 334. He has violated no law, and has incurred no penalty. Where a statute has made notes utterly void, they are so in the hands of every body. 5 Mass. 586; Dougl. 741. But unless it is expressly so declared by statute, illegality of consideration is no defence to a suit by a bona fide holder. 2 N.H. 410; 1 Saund. Pl. & Ev. 307; 1 Wheaton's Sel. 244. Usurious notes are utterly void by statute. 1 East 92. Yet Lord Kenyon said he thought the statute had gone far enough in making them void in the hands of an innocent indorsee without notice; and where a bill was legal in its inception, he held that no advantage could be taken of what happened afterwards against bona fide holders. The cases of Fennell vs. Ridler, 5 B. & C. 406, and Bloxsome vs. Williams, 3 B. & C. 232, intimate that a note made on Sunday would be valid in the hands of an innocent indorsee.

Wilcox, in reply, contended that the note could not be confirmed by any matter subsequent to its inception, because it was originally void, and so was incapable of confirmation. 2 Vezey 125, Chesterfield vs. Janssen; Co. Litt. 295, b; 1 Story's Eq., § 306. If it could be ratified, the ratification would operate as a repeal of the statute; for then a note made on Sunday, and prohibited by law, would by the ratification be good from the beginning. Clough vs. Davis, 9 N.H. 500, was not a case of ratification of a contract made on Sunday, for the contract was actually made on Monday, and the...

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