A. Goletti, Inc., v. Andrew Gray Co.

• Decision Date: 02 May 1921
• Docket Number: 21756
• Citation: 125 Miss. 646,88 So. 175
• Court: Mississippi Supreme Court
• Parties: A. GOLETTI, INC., v. ANDREW GRAY CO

88 So. 175

125 Miss. 646

A. GOLETTI, INC., v. ANDREW GRAY CO

No. 21756

Supreme Court of Mississippi

May 2, 1921

SUNDAY. Sunday, contract void, but recovery may lie Had for quantum valebat where property accepted on subsequent secular day.

A written contract executed on Sunday Is void, and no recovery can be had thereon, but recovery may be had for quantum valebat in an action of assumpsit upon an implied promise to pay for property which was accepted and converted upon a subsequent secular day.

HON. D M. GRAHAM, Chancellor.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Chancellor.

Action by A. Goletti, Incorporated, against the Andrew Gray Company. From a judgment of dismissal; plaintiff appeals. Reversed and remanded.

Judgment reversed, and case remanded.

White &amp Ford, for appellant.

In the case before your Honors the amount now claimed is not the consideration for any Sunday contract but the amount due for the reasonable value of the lumber inspected and accepted taken and used by appellee on a secular day. It bears no relation to any contract. In the Kountz case nothing was done to the completion of the contract on a secular day while in the case at bar the entire thing was done on a secular day. The Kountz case condemns as unlawful the thing done on Sunday. We admit the contract was unlawful, but there was nothing unlawful or even improper in appellee's inspecting lumber and taking it on a secular day. In the Kountz case it is held where the contract has its inception on Sunday, and is completed some other day the contract is not illegal. We have shown the was no contract until inspection and the demurrer to the replication admits it, but we do not even have to rely on that proposition of law, because we seek nothing under the void Sunday contract.

Counsel cite McKee v. Jones, 67 Miss. 405, but neither in the statement of facts nor opinion are we able to find any holding such as is attributed to it by counsel. Counsel's statement of what was held, does not affect this case, but the only two propositions decided in the McKee case were that the Sunday law was not involved because the trade was in Louisiana and that the court ruled erroneously on a question of warranty.

Counsel then lay down the rule that this court holds trover and attachment do not lie and there can be no recovery on a quantum valebat but cites no cases to support the statement.

Counsel rely on Strouse v. Lanctot, 27 So. 606. The suit was on the Sunday contract and the contract was relied on for recovery. Without the contract no recovery was sought. This court held the contract unenforceable but if the suit had been one for the value of clothes delivered on a week day the decision would have been different. In the Strouse case the point is clearly made that the recovery is sought on the void contract. We have never contended for such a point.

Appellee's only criticism of the authorities cited by appellant in original brief is that they are cases from other jurisdictions. We submit such cases ought to be helpful if not persuasive in the absence of a case in point from Mississippi. We don't rely on any question of ratification, as counsel seem to think. The cases we cite are cases where the facts are similar and we do not think the court will be misled by counsels seeking to inject an immaterial issue in the case.

Counsel finally says he does not dispute our law and we certainly admit every case he cites is the law, so then we leave it to the court to decide whose cases fit the facts of the case at bar.

Counsel make the statement that delivery of the lumber was not necessary. Gray's agent had to inspect it before it was ever shipped and it was inspected and shipped to Gulfport, the place of delivery, on a secular day and then taken and converted by Gray on another secular day. The replication is the controlling pleading and we ask the court to read it carefully.

Counsel admit the void portions of a contract can be separated from the good and the good portions enforced. Jones v. Brantley, and Bowers v. Jones, criticised by counsel both so hold. Counsel ought to be familiar with the Bowers case as they tried it and raised the same defense in that case as here.

So under the rule of separating the good from the bad and proceeding on the good, we can travel and in fact stand alone without the contract. Appellee speaks about violation of Holy Writ. It seems to us appellee ought to be ashamed to mention Holy Writ. We take it he is in favor of some of the Ten Commandments and against others and reserves the right to make his choice as circumstances arise.

It is very true the statute is not passed for the benefit of a defendant. We all know its purposes. Looking at the record herein, has anything been done violating the letter or spirit of the statute? Why should not this lumber have been inspected and accepted on a week day just as any other?

If the parties are left where they are found, then we say they are in the position of appellee owing appellant for his lumber converted to the use of appellee. He couldn't take the lumber pursuant to a contract because there was no contract, it was void; then he took it under circumstances rendering him liable therefor.

We trust this court will write the history of this case on the pages of its reports to serve as a warning for the unwary and that it will speedily reverse the case that justice may be done.

Mize & Mize, for appellee.

Counsel for appellant say that it is not a suit on any contract whatever, but is plainly a suit for the value of twenty-two thousand feet of lumber; yet he overlooks a part of the pleadings which is part of the case, to-wit; appellee's plea which avers that the suit is for the price of certain lumber of which lumber each and every particle was delivered in pursuance of a contract that was wholly made on Sunday, and this the appellant did not deny.

There was no inspection necessary to the competion of the sale; the sale under this contract, if executed on a secular day, was complete when the contract was signed.

Counsel for appellant further takes the position that no contract was ever made; that it was a void sale and that the contract was a nullity. This is true; yet every bit of the lumber for the price of which this suit was brought was delivered under this void contract, and one that was not only void but prohibited by the statute. The same contention was made in the case of Block v. McMurray, 56 Miss. 217.

The case of Miller v. Lynch, 38 Miss. 344, was a case where on Sunday the parties met and went over their differences and found that one owed the other a certain amount and a note was given on that day for the balance of indebtedness in a transaction that took place before that day and also for a wagon that had been sold on a secular day; and the court held that the note was void and unenforceable. To the same effect is the case of Kuntz v. Price, 40 Miss. 341. This case is almost on all fours with the present case.

In the instant case the price and amount of the lumber was agreed upon on a Sunday and the contract embodying the same was signed, executed and delivered on Sunday; then the seller of the lumber thereafter delivered it to the buyer on a secular day, which amounted to an attempted ratification by the seller of the lumber, but the appellee, the buyer of the lumber does not agree to the attempted ratification of the contract and declines to pay; and the contract, having been wholly made, signed and delivered on Sunday, is absolutely void and the appellant is not entitled to enforce it in a suit at law.

In the case of Block v. McMurray, 56 Miss. 217, cited supra, the court held that an action of trover would not lie for the value of the horse. In that case, McMurray, instead of suing on the contract made on Sunday to recover the price of the animal he had sold and delivered on Sunday, attempted to bring an action of trover; just as, in the instant case instead of declaring on the contract, the appellant is attempting to evade his attempted contract and bring an action quantum valebat; but the court, in the McMurray case held that the statute could not be evaded in any such manner.

To the same effect is the case of McKee v. Jones, 67 Miss. 405, holding that the creditor of the seller who sells property on Sunday cannot levy an attachment on the property on the ground that the title to the property sold on Sunday did not pass; that the law is absolutely non-action.

So this court holds that trover does not lie and attachment does not lie; and there is no coming in on the ground of quantum valebat and attempting to evade the penalty of the statute.

The case that is right on all fours with the instant case is a case that went up from Monroe County. Strouse et al. v. Lanctot, 27 So. 606. It is well settled that it can be shown that a contract, though it bears a different date, was entered into on Sunday, 37 Cyc., p. 572.

The appellant cites a number of cases from other states, none of which, we respectfully submit, are in point.

The first case cited in counsel's brief is a Tennessee case, where the terms of the agreement were subject to the purchaser's inspection of the oxen and satisfaction with them, and the inspection and approval of the oxen took place on a secular day. This was a valid contract because the contract was not completed till a secular day. Not so in the instant case.

The next case is an Iowa case, where the order was taken on Sunday but the delivery and acceptance thereof occurred on a secular day; and,...