Gordon v. Levine
| Decision Date | 25 February 1908 |
| Citation | 197 Mass. 263,83 N.E. 861 |
| Parties | GORDON v. LEVINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis P. Garland and Edward D. Wright, for plaintiff.
Nathan Barnett, for defendant.
The only question before us in the case at bar is that raised by the exception to the refusal to adopt the following ruling asked for by the plaintiff: 'If the check was delivered on Sunday it was invalid and of no legal effect, and the plaintiff is entitled to recover on his count for money' lent.
'If the check was delivered on Sunday it was invalid and of no legal effect,' and the plaintiff could not have recovered if he had brought suit on it against the defendant on nonpayment by the bank after a presentment within the proper time. Stevens v. Wood, 127 Mass. 123.
But it does not follow that 'the plaintiff is entitled to recover on his count for money' lent.
On the contrary a defense to the count for money lent would have been made out if the plaintiff had received the $100 from the bank on presenting the check to it for payment.
It was decided in Johnson v. Willis, 7 Gray, 164, that a payment made on Sunday is a defense to an action for the recovery of the debt so paid. To the same effect see Cranson v. Goss, 107 Mass. 439, 441, 9 Am. Rep. 45; Leonard v. Travis, 6 Allen, 129, 130; Clapp v Hale, 112 Mass. 368, 370, 17 Am. Rep. 111.
In the case we have supposed, where the plaintiff received his $100 from the bank on presenting the check for payment, the defendant cannot make out his defense without showing an infraction of the Sunday law. But that is equally true where the debt is paid on Sunday. As was said by Metcalf, J., in Leonard v. Travis, 6 Allen, 129 130:
The distinction established by the cases in this commonwealth is this: The court will not aid a party to recover on a Sunday transaction on the one hand; but on the other hand it will not treat as a nullity what was done on Sunday in performance of a valid contract; it will on the contrary give to the act done on Sunday its legal effect when set up in defense.
This is made clear by the language of the opinions in Johnson v. Willis, 7 Gray, 164, Cranson v. Goss, 107 Mass. 439, 441, 9 Am. Rep. 45, and Leonard v. Travis, 6 Allen, 129, 130; and it is established by the decision in Clapp v. Hale, 112 Mass. 368, 17 Am. Rep. 111. In that case it was decided that while a part payment on Sunday was valid as a part payment it did not take the note out of the operation of the statute of limitations.
In the case at bar the plaintiff got his $100 by 'negotiating' the check, and the result is the same as if he had received the money from the bank.
It appears from the bill of exceptions that when he 'negotiated' the check on Monday he received from the indorsee the $100 called for by it. It is stated that when the check was returned to the plaintiff he 'returned the $100 which he had received upon the negotiation of said check.'
The check therefore was a valid check in the hands of the purchaser to whom it was negotiated on Monday. A negotiable instrument void because delivered on Sunday is valid in the lands of a bona fide purchaser for value without notice. Cranson v. Goss, 107 Mass. 439, 9 Am. Rep. 45. The statute (as to the rights of a purchaser of a negotiable instrument payable on demand) in force when Stevens v. Wood, 127 Mass. 123, was decided, was repealed by the negotiable instruments act, now Rev. Laws, c. 73, § 70.
The purchaser of this check from the plaintiff lost his rights against the plaintiff (the payee who indorsed it to him) when he failed to present it within a reasonable time, for the same reason that he lost them against the drawer; as to which see Gordon v. Levine, 194 Mass. 418, 80 N.E. 505. It...
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