Gwinn v. Simes

• Citation: 61 Mo. 335
• Parties: WM. A. GWINN, Defendant in Error, v. BENJ. S. SIMES, et al., Plaintiffs in Error.
• Decision Date: 31 October 1875
• Court: United States State Supreme Court of Missouri

61 Mo. 335

WM. A. GWINN, Defendant in Error,

v.BENJ. S. SIMES, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Saline County Circuit Court.

Crandall & Sinnett, for Plaintiffs in Error.

The contract was made on Sunday in violation of the statute, and is illegal and void. (Wagn. Stat., 504, § 32; Barnard vs. Lapping, 32 Mo., 341; Peltz vs. Long, 40 Mo., 532; 1 Pars. Cont., 458; 24 N. Y., 353; Myers vs. Meinath, 3 Am. Rep., 368, and notes; Hill vs. Wilkee, 5 Am. Rep., 540, and authorities cited.)

Nor can the contract made in violation of the statute be ratified and made valid, because, 1st, there is no contract to ratify, and 2d, that would be to punish the doing of an act indirectly, that is prohibited being done directly. (Gray vs. Hook, 4 N. Y., 449; Moncure vs. Dermott, 13 Pet., 345; Walker vs. Bank of Washington, 3 How. U. S., 62; Brady vs. Rea, 4 Am. R., 524; 103 Mass., 190; Payne vs. Darby, 20 N. J., 233; Reeves vs. Butcher, 31 N. J., 225; Pope vs. Linn, 50 Me., 83; Finn vs. Donohue, 35 Conn., 218.) The mortgage is only a collateral obligation designed as security for the performance of the original contract (1 Hill. Mort., p. 4) and cannot impart validity to affect the contract secured by it.

The contract being illegal and void, the mortgage is without consideration and void, and cannot be enforced. (Dewitt vs. Brisbane, 16 N. Y., 508; Tyler vs. Yates, 3 Barb., 222; Leavitt vs. Palmer, 3 N. Y., 19; Morgan vs. Tipton, 3 McLean, 339.)

Shackelford & Hays, for Defendant in Error.

1. The note was valid even though executed on Sunday, if given for a valid debt; and the mortgage executed afterwards to secure the note was valid. And whatever may have been the facts as to whether the note was executed on Sunday, neither will justice nor public morals be promoted by allowing the defense. (Kaufman vs. Ham, 30 Mo., 387.)

II. The contract was not completed until the execution and delivery of the mortgage. (Fritsch vs. Heislen, 40 Mo., 557.)

III. A contract made on Sunday, which is afterwards ratified and completed, will be enforced. (11 ed. Chit. Cont., 2 vol., p. 588, and cases cited; 2 Pars. Cont., last edition, p. 763.)

HOUGH, Judge, delivered the opinion of the court.

This was a proceeding to foreclose a mortgage made by the defendants, to secure the payment of a promissory note for the sum of two thousand and sixty dollars, executed by the defendant, Benjamin Simes, and dated September 7, 1863. The mortgage was signed on the 12th day of September, and acknowledged on the 17th day of September, 1863. The defendants pleaded in bar of a recovery and foreclosure, that the consideration of the note sued on was money loaned by the plaintiff to the defendant, Benjamin Simes, and that said loan was made and the note therefor executed on the 6th day of September, 1863, which was the first day of the week, commonly called Sunday.

There was no averment that the note so executed was delivered on Sunday, but this defect in the plea was cured by the replication and the subsequent proceedings in the cause. The testimony as to the time at which the note was executed and delivered, was conflicting. The defendant testified that it was executed and delivered on Sunday, for money loaned by the plaintiff to him upon that day, and the plaintiff testified that the money was delivered by him to defendant on Sunday, but that the note was neither executed nor delivered on Sunday, but upon a subsequent secular day.

The cause was tried by the court without the aid of a jury, and judgment was rendered for the plaintiff. The defendants bring the case here by writ of error.

The question presented for our determination by the instructions which were given and refused by the court below, is, whether the plaintiff can recover if the note in controversy was executed and delivered on Sunday, it being admitted that the money loaned was delivered on that day. Conceding that this contract comes within the prohibition of our statute in relation to the observance of Sunday as a day of rest, on which point we reserve our judgment, the decision of this cause will depend upon the effect to be given to the subsequent execution and delivery by the defendants, on a secular day, of the mortgage made by them to secure the payment of the debt evidenced by this note.

As to the precise nature of the invalidity which attaches to contracts executed upon Sunday, the authorities are numerous and conflicting. In Maine, Massachusetts, and some other states, it is held that such contracts are void and incapable of ratification.

In Vermont the rule is different. In the case of Adams vs. Gay (19 Vermont) Judge Redfield says: “We think contracts made on Sunday should be held an exception, in some sense, from the general class of contracts which are void for illegality; they are illegal only as to the time in which they are entered into; when purged of this ingredient they are like other contracts. Contracts of this kind are not void because they have grown out of a transaction on Sunday. This is not sufficient to avoid them. They must be finally closed upon that day. And although closed upon that day, yet if affirmed upon a subsequent day, they become valid.”

In the case of Tucker vs. West, decided by the Supreme Court of Arkansas, and reported in Cent. Law Jour., vol. 2, p. 607, Chief Justice English concludes,...