Glover v. Cheatham

• Decision Date: 07 December 1885
• Citation: 19 Mo.App. 656
• Parties: EMMA GLOVER ET AL., Plaintiffs in Error, v. SUSAN CHEATHAM ET AL., Defendants in Error.
• Court: Kansas Court of Appeals

19 Mo.App. 656

EMMA GLOVER ET AL., Plaintiffs in Error, v. SUSAN CHEATHAM ET AL., Defendants in Error.

Court of Appeals of Missouri, Kansas City.

December 7, 1885

ERROR to Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

The case is stated in the opinion.

J. D SHEWALTER and WASH ADAMS, for the plaintiffs in error.

I. The common law did not invalidate contracts made on Sunday. Fox v. Musch, 3 W. & S. 446; Shuman v Shuman, 3 Casey 90; Johnson v. Brown, 13 Kansas 529; State v. Ricketts, 74 N.C. 187; Bloom v Richards, 2 Ohio St. 388; Boynton v. Page, 13 Wendell (N. Y.) 425; Moore v. Clymer, 12 Mo.App. 14.

II. The statute of this state, as to Sabbath-breaking, Revised Statutes, section 1578, does not change the common law. The word " labor " does not comprise the making of contracts. Moore v. Clymer, 12 Mo.App. 14; Bloom v. Richards, supra; see also, Fritch v. Heisler, 40 Mo. 455; Gwinn v. Simes, 61 Mo. 337.

III. A debt barred by the statute of limitations is a sufficient consideration to uphold a note. The statute of limitations does not extinguish the debt, but bars the remedy, and this is the reason Chitty assigns why a demand may be revived by the debtor's subsequent promise without any new consideration. Chitty on Cont. 907, 922; 1 Parsons on Cont. (6 Ed.) 434; Hill v. Henry, 17 Ohio 9; Bell v. Morrison, 1 Peters (U. S.) 371; Little v. Blumb, 9 Pick. (Mass.) 492; 1 Daniels on Neg. Inst. (2 Ed.) 182.

IV. In the case of Kaufmann v. Hamm (30 Mo. 389), a note executed on Sunday for a pre-existing debt was upheld. It is now settled law that a written promise to pay, whether made before or after the debt is barred, will continue the remedy and remove the statutory bar. Patton v. Hassinger, 69 Pa.St. 311; Angell on Limitations (5 Ed.) sect. 208.

WILLIAM WALKER and RICHARD FIELD, for the defendants in error.

I. The note sued on was executed and delivered on Sunday and is, therefore, void. The statute (sect. 1578, Rev. Stat.) having inflicted a penalty for doing the thing forbidden, the courts will not assist a wrongdoer. The penalty implies a prohibition of the things mentioned in the statute. The statute prohibits labor or any work. It is remedial and is to be liberally construed as regards the mischief to be remedied. Smith v. Wilcox, 24 N.Y. 354; Rev. Stat., sect. 1578; Tucker v. West, 29 Arkansas 393; Hill v. Wilker, 41 Georgia 454; Sayne v. Wheeler, 31 Iowa 114; Raines v. Watson, 2 West Va. 393; Love v. Wells, 25 Indiana; Reeves v. Butcher, 31 N.Y. 226; Cranson v. Goss, 107 Mass. 440; Hill v. Sherwood, 3 Wis. 345; Ex parte Andrews, 18 Cal. 679; 2 Parsons on Cont. (5 Ed.) 757, notes n, o, p, q, r; Specht v. Commonwealth, 8 Pa.St. 312.

II. The penalty implies a prohibition. Wood v. Armstrong, 54 Ala. 150; Downing v. Ringer, 7 Mo. 586; Tuxberry v. Miller, 19 Johns. (N. Y.) 311.

III. The case of Moore v. Clymer (12 Mo.App. 14), involved a construction of the Illinois statute. The case of Kaufmann v. Hamm (30 Mo. 389), is put upon the authority of Greer v. Putnam (10 Mass. 313), which was afterwards virtually overruled by Pattee v. Greely (13 Metc. (Mass.) 284). The Missouri statute uses the words " to labor or perform any work." Certainly the expression " any work" means something in addition to labor.

HALL J.

This is an action upon a promissory note, executed and delivered in 1879 upon a Sunday. The note was given for a debt, which was barred by the statute of limitations.

I.

The principal, if not the only, question presented for our determination is, " is a promissory note, in this state, executed and delivered on Sunday, void?"

At common law a note executed and delivered on Sunday was not void. 2 Benjamin on Sales, sect. 842; Moore v. Clymer, 12 Mo.App. 14; Bloom v. Richards, 2 Ohio St. 388.

And such is the law in this state, unless the rule of the common law has been changed by some statute of this state. The statute upon this subject, in force at the time of the execution of the promissory note, is section 1578, Revised Statutes, which is as follows: " Every person who shall either labor himself, or compel or permit his apprentice, or servant, or any other person under his charge or control, to labor or perform any work, other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game, * * * shall be deemed guilty of a misdemeanor and fined not exceeding fifty dollars."

And the question is, " is the execution of a promissory note included within the prohibition of the statute ‘ to labor or perform any work?"

In Ohio there was a statute, which provided " that if any person of the age of fourteen years and upwards, shall be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing, or at common labor (works of necessity and charity excepted), he or she shall be fined in a sum not exceeding five dollars, nor less than one dollar; provided, that nothing herein contained shall be so construed as to extend to those who conscientiously do observe the seventh day of the week as the Sabbath; nor to prevent families emigrating, watermen from landing their passengers * * *."

The question arose in Ohio whether the making of a contract was included within the prohibition of that statute. In a very able and elaborate opinion, written by Judge Thurman, it was held by the supreme court of that state that the making of a contract was not included within the prohibition of the statute. In the opinion of the court a great many cases from numerous states holding Sunday contracts void were examined at length, and it was shown that in all those cases the statutes, under which they arose, differed from the Ohio statute, by prohibiting not only labor but also business; and that the decisions in all those cases were based upon the use of the word " business" by those statutes. Bloom v. Richards, 2 Ohio St. 388."

The Ohio statute was adopted by Nebraska, and it has received the same construction by the supreme court of the latter state. Horacek v. Keebler, 5 Neb. 358.

In Kansas the statute was as follows: " Section 255. Every person who shall either labor himself or compel his apprentice, servant, or any other person under his charge or control, to labor or perform any work * * * on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor," etc. Under that statute a contract made on Sunday was held by the supreme court of that state not to be void. Johnson v. Brown, 13 Kansas 530.

The statute of New York prohibited traveling, except in specified * * * cases, servile laboring or working, and the exposure to sale of any wares or merchandise, except certain articles of food, at a particular hour of the day. In that state it has been held that the making of a contract is not forbidden by the statute. Merritt v. Earle, 29 N.Y. 115. And under that New York statute a private sale of a horse has been held to be valid. Boynton v. Page, 13 Wend. 429.

In Kaufmann v. Hamm (30 Mo. 388), it was held that a promissory note given on Sunday for an antecedent debt was not void, under a statute exactly like our present statute except that that statute contained no prohibition against hunting game, etc. Speaking for myself, I cannot perceive why that case is not a direct authority upon this question. It is considered an authority upon this question by Brewer, J., who delivered the opinion in the case of Johnson v. Brown, supra, and it is so cited in 2 Benjamin on Sales, in the note to section 842. Its authority has undoubtedly been very much weakened by the...