Finley v. Quirk

• Decision Date: 01 January 1864
• Citation: 9 Minn. 179
• Parties: MATTHEW FINLEY vs. PATRICK QUIRK.
• Court: Minnesota Supreme Court

9 Minn. 179

MATTHEW FINLEYvs.

PATRICK QUIRK.

Supreme Court of Minnesota.

Appeal from judgment of district court, Rice County.

Points and authorities for appellant: —

1. The justice, and not the court above, is to approve of the sureties (on an appeal bond). The statute does not require that the surety should justify. Comp. Stat. 517, § 136, sub. 2; id. 575, § 125; 1 Cow. 576.

2. The offer to prove by the witness Burns, that the plaintiff had, since the commencement of this suit, been offered $100 for a horse which he swore was worth but $25, by a responsible party, and refused it, was clearly proper; and the subsequent proof by one witness of a cash offer of that kind, and by another that the offer was not a cash offer, but an offer to take the mare at $100 in a horse trade, does not cure the objection; as in this conflict of testimony that of the witness Burns would have proved a cash offer, while as the case stands his own testimony leaves it in doubt.

3. There is no evidence that the mare was balky at the time of the sale. The plaintiff's evidence goes to a point of time subsequent to the sale, and, in the face of defendant's evidence of the condition of the mare at and previous to the sale, fails to support the verdict.

4. The contract sued upon is void because consummated on Sunday. The payment of the money, which is the consideration for the warranty, was on Sunday. The delivery, without which no property would have passed to the plaintiff, and therefore no action for deceit or warranty could have been maintained, was also on Sunday. 18 Vt. 379; 17 Mass. 258.

5. The executory contract of Saturday was void, because it was an agreement on the part of the defendant to deliver the horse on Sunday, and on the part of the plaintiff to receive and pay for him on Sunday. Comp. Stat. 730, §§ 19, 20; 1 Hill, 76; 2 Conn. 73; 19 Barb. 581; 24 N. Y. 353; 8 Minn. [10]; id. [40].

6. An action for deceit or breach of warranty founded upon the sale cannot be maintained. If the plaintiff's illegal act enters into the transaction the whole must fail. 14 Wend. 248; 12 Met. 24; 10 Met. 363; 4 Cush. 322; 13 Met. 284; 15 N. H. 577.

7. The only case in this country which holds that an illegal contract of this character can be made good by a retention of the subject-matter of the contract, is Adams v. Gray, 17 Vt. 358, and is at variance with the analogies of the law and the general current of authorities. 2 Parsons Cont. 253-262; 3 Mee. & W. 240.

8. The objection was properly raised by the motion, and the denial of the motion for judgment is error. Upon the plaintiff's own showing the contract was consummated on Sunday, and there was no question of fact to submit to the jury. 10 Barb. 663; 13 Barb. 10; 21 Wend. 537.

9. We do not admit a valid sale. We take issue upon the contract sued upon, and as the plaintiff cannot make out his claim without showing an illegal act, his own evidence fails to support his action. 4 Cush. 326.

Points and authorities for respondent: —

1. The defendant cannot show prejudice from the ruling of the court below in reference to the additional security, because — First, the whole question was within the discretion of the court, and the additional surety was rightly required. Comp. Stat. 518, § 145. Second, there was really no ruling. The defendant waived the making of the affidavit required by the court, and all exception to the ruling, and voluntarily furnished the additional surety without waiting for the state of facts to arise on which the court had expressed an intention to rule. Zimmerman v. Lamb et al. 7 Minn. [421]. Third, even if there were a ruling, and that erroneous, such ruling could in no way affect the merits of the case, the verdict of the jury, or the rights of the defendant, or be ground for a new trial. Woodbury v. Larned, 5 Minn. [339].

2. Nor was defendant prejudiced by the ruling of the court excluding the testimony of the witness Burns in reference to the offer of $100 for the horse to Finley, because — First, the evidence excluded was not competent legal evidence, and could in no way affect the question of the value of the horse. Second, the offer was fully testified to by other witnesses, and was fully stated to the jury by the party who made the offer. This would cure any error, admitting there were such. 1 Minn. [134]; 7 Minn. [184].

3. The third point made by appellant is not well taken, because the whole evidence in relation to the disposition and soundness of the mare was properly submitted to the jury, and they were left to conclude from such testimony whether the mare was as represented at the time of the sale. 6 Minn. [160]; 7 Minn. [511]; 8 Minn. [286], [299]; 7 Wend. 270.

4. The 4th, 5th and 6th points made by appellant are not well taken. 12 Met. 24; 10 Mass. 311; 8 Minn. [41]; Van Sant. Pl. 474, 477; 1 Duer, 253; 18 Ala. 280, (2 Parsons Cont. 2622, note); 12 Met. 24; 19 Vt. 358; 12 Parsons Cont. 262, note.

5. But waiving all other points the evidence shows that the contract was fully executed on Saturday; that the fraudulent representations were made and the warranty given on that day; that part of the purchase money was paid, and nothing necessary to constitute a legal contract left to be done. Quirk could not have refused after this to deliver the horse, nor Finley to pay the balance of the price agreed on. Chitty Cont. (5th Am. ed.) 374, 375; 1 Cowen Tr. 60.

Cole & Case, for appellant.

Batchelder & Buckham, for respondent.

WILSON, J.

Action for breach of warranty of a horse. The suit was originally commenced in justice's court, and after judgment removed by appeal into the district court of Rice County. In the complaint the plaintiff "charged that the defendant in sale of a horse to him warranted the horse to be sound, perfect in every respect, and true, gentle, and willing to work — all which representations he knew to be false." Defendant in his answer "denied the warranty and all knowledge of any defects, and alleged that at the time of sale the horse was sound, gentle, and willing to work." Verdict was rendered in the district court for the plaintiff, and the defendant thereupon moved the court for a new trial. The motion was denied, and the defendant appealed to this court.

The grounds for a new trial urged in this court are: First, error in law occurring at the trial and excepted to; second, that the evidence was not sufficient to justify the verdict. These objections we will examine in the inverse order of their statement.

It appeared from the evidence given on part of the plaintiff in the court below, that upon a trial of the horse three or four days after the purchase he proved to be "balky." Defendant's counsel insist that this is not evidence that he was "balky" at the time of sale. This objection is untenable. The "trial" was not at a time so remote as to justify the belief that a change had taken place in the disposition of the horse between the time of purchase and the time of trial.

The following are the alleged errors of law occurring at the trial and excepted to: First, "Upon appeal to the district court the plaintiff moved that the surety on defendant's appeal bond be required to justify or that he be required to furnish another surety." The court ruled that if the plaintiff would make affidavit that the surety was insufficient he would require him to justify or the defendant must procure another. To this ruling the defendant excepted, and furnished another surety, the surety on the bond not being in attendance. The "case," from which we have above quoted, does not show any ground for this "exception." It does not show that any order, or, in fact, that any operative ruling was made by the court in the premises, and therefore it is unnecessary for us to inquire whether the ruling of the court below on this point was correct. Second, on the trial, the "defendant offered to prove that since the commencement of this suit the plaintiff has been offered one hundred dollars for the horse by a good and responsible party, and refused it. Objected to by plaintiff. Objection sustained and exception taken by defendant." This evidence was offered for the purpose of showing the value of the horse. What a "good and responsible party" offered, is not evidence of that fact. But even if this evidence was erroneously excluded, the error was corrected by the subsequent admission of evidence of the same fact by other witnesses. Two witnesses were afterward called by the defendant, and testified to the same point, without objection by plaintiff. Third, in the examination of the plaintiff's witnesses, it appeared that on Saturday the parties met, and the plaintiff agreed to purchase and the defendant to sell the horse at a price agreed upon. The plaintiff then paid $5 to "bind the bargain," agreeing to pay the balance of the purchase money on the next day, when the horse was to be delivered. The horse was delivered, and the purchase money paid, on the next day (the Sabbath), in pursuance of the contract.

When the plaintiff closed his evidence and rested his case the defendant moved the court for judgment on the ground that the evidence showed that the bargain was consummated on Sunday. The motion was denied, and defendant excepted. This is the principal point in the case; we think the only one relied upon by defendant's counsel. The sale of a horse consummated on the Sabbath is void, and an action on the warranty in such sale will not lie. Comp. Stat. 730, § 19; Smith v. Wilcox, 24 N. Y. 353; Northrup v. Foot, 14 Wend. 248; Brimhall v. Van Campen, 8 Minn. [13]; Finney v. Callendar, id [41]. It is claimed by the counsel for the plaintiff that this point was not in issue, and therefore that the evidence touching it was irrelevant. It is doubtless true that evidence must correspond with the allegations, and be confined to the point in issue, and if in the examination of witnesses facts come out which, had they been alleged, would furnish...