Hofgesang v. Silver

• Decision Date: 21 January 1930
• Citation: 232 Ky. 503,23 S.W.2d 945
• Parties: HOFGESANG v. SILVER.
• Court: Kentucky Court of Appeals

23 S.W.2d 945

232 Ky. 503

HOFGESANG v. SILVER.

Court of Appeals of Kentucky

January 21, 1930

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Action by H. J. Silver against J. C. Hofgesang, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

Hardy &amp Hardy, of Louisville, for appellant.

William L. Doolan and Doolan & Doolan, all of Louisville, for appellee.

WILLIS J.

H. J Silver instituted an action against J. C. Hofgesang, Jr., to recover compensation for services rendered as a real estate broker. A paragraph of the answer of Hofgesang alleged that the written contract, which he exhibited as the basis of the action, had been executed on Sunday. A demurrer to that particular part of the pleading was sustained, and a trial before a jury resulted in favor of the plaintiff. Upon an appeal to this court, the judgment was reversed upon the single ground that the court had committed an error in sustaining the demurrer to that part of the answer. Hofgesang v. Silver, 223 Ky. 101, 3 S.W.2d 185. The lower court was directed to overrule the demurrer and to permit a reply to be filed. Upon the filing of the mandate of this court, Silver filed a reply, and later filed an amended reply. The case came on for trial, and during the progress of the trial Silver tendered an amended reply pleading ratification of the contract by the defendant. An objection was interposed to the filing of the amendment, but the court overruled the objection and permitted the pleading to be filed. At the instance of the defendant, the case was then continued. On a later trial Silver again recovered a judgment for the commission claimed, and Hofgesang again appeals. The objection to the filing of the amended pleading raised a question of its sufficiency and was equivalent to a general demurrer thereto. Barbaroux v. Barker, 4 Metc. 47; Brady v. Peck, 99 Ky. 42, 34 S.W. 906, 35 S.W. 623, 17 Ky. Law Rep. 1356; Cincinnati N. O. & T. P. R. Co. v. Smith, 165 Ky. 235, 176 S.W. 1013; Harlan Coal & Coke Co. v. Davidson, 203 Ky. 580, 262 S.W. 936; Standard Auto Ins. Association v. West, 203 Ky. 335, 262 S.W. 296; Shuey v. Hoffman, 224 Ky. 765, 7 S.W.2d 202. No responsive pleading was presented to the amended reply, and it was not traversed of record. If it was sufficient in law to constitute an avoidance of the defense interposed on account of the basic contract being signed on Sunday, then the court committed no error in permitting it to be filed, or in rendering judgment for Silver. The amended reply set forth that on September 21, 1925, immediately after the acceptance by B. F. Jarboe of the proposition which appellant had signed on the preceding Sunday, and again on September 22d, and again on September 24th, the defendant directed and authorized Silver to require Jarboe to proceed towards a consummation of the contract, directed and authorized an attorney to prepare the necessary conveyances for Jarboe, and thereby caused the preparation, execution, and acknowledgment of deeds to carry out the contract on secular days subsequent to the execution of the proposition. Silver had advised Hofgesang that his proposition had been duly accepted by Jarboe within the time fixed, and the defendant then and there promised to have prepared appropriate conveyances of his property and to close the deal as soon as the attorneys could report upon an examination of the title. It was averred that by such recognition, approval, and action, the original proposition, although signed on Sunday, had been duly ratified on secular days.

It is first insisted that there can be no ratification of a contract signed on Sunday unless the contract is in some way carried into effect. The rule is not so narrow as the argument assumes. Although the authorities are not harmonious, it has been held that an oral acknowledgment of the contract and a promise to perform is sufficient ratification thereof to make it binding. A contract executed on Sunday, and for that reason invalid under the statutes of the state where the act occurred, may be ratified on a secular day, either by performance or by a promise to perform. It is said that this view of the question is sustained by the weight of authority on the ground that it is the more reasonable rule. 25 R.C.L. § 27, p. 1434. The text-writers put a recognition of the binding effect of such a contract upon the same basis as its adoption, or the execution of some part of it. 3 Williston on Contracts, p. 2990, § 1707.

Ratification is a question of fact, and, as applied to contracts, it may be express or implied. Short v. Metz Co., 165 Ky 320, 176 S.W. 1144; Stern v. Freeman, 4 Metc. 309. If some portion of a contract made on Sunday is carried out on a secular day, an implied ratification results; but, although no acts such as payment or execution of instruments are shown, an express ratification may be found in a promise to carry out the contract, or by directions to proceed to that end. Wren v. Cooksey, 147 Ky. 825, 145 S.W. 1116; Gooch v. Gooch, 178 Iowa 902, 160 N.W. 333, L.R.A. 1917C, 582; Kenyon Realty Co. v. National Deposit Bank, 140 Ky. 133, 130 S.W. 965, 31 L.R.A. (N. S.) 169; Fletcher v. Wireman, 152 Ky. 565, 153 S.W. 982; Rosenblum v. Schachner, 84 N. J. Law, 525, 87 A. 99. "Ratification of a contract implies the giving of consent to, or the sanctioning of, the terms of it." Hoosier Mining Co. v. Union Trust Co., 173 Ky. 505, 518, 191 S.W. 305, 310. If a party desires to rely upon the invalidity of a contract, he must disclaim it and refuse to permit anything to be done under it in so far as it concerns him. Thus a party from whom a contract has been wrung by duress must disclaim on the recovery of freedom, and subsequent recognition of the contract is the equivalent of ratification. Sternback v. Friedman, 23 Misc. 173, 50 N.Y.S. 1025. In Lee's Adm'r v. Harper, 6 Ky. Op. 416, it was held that, although a contract had been made on Sunday, it could be ratified and confirmed by recognition thereafter, and it was held to be a question for the jury whether or not there had been a ratification. In Campbell v. Young, 9 Bush, 240, it appeared that a note had been executed on Sunday for money that day loaned, but instead of the cash being handed to the borrower, the lender gave his check for a part of the loan. Later, on a secular day, the borrower deposited the check to his credit. This was held to be a sufficient ratification of the contract to take it out of the condemnation of the statute. To the same effect is Sullivan v. Sykes, 114 Okl. 87, 243 P. 722. It is stated in 37 Cyc. p. 566, that one of the methods of ratifying a contract made on Sunday is by an express promise to perform, or by doing some affirmative act which assumes the validity of the contract. But it is said that the former opinion, which constitutes the law of this case, indicated the sort of ratification which would be effective. The opinion stated that, "if appellant had accepted the benefits of the contract by concluding the deal," it perhaps would have been a ratification. That statement did not preclude proof of ratification in some other way. The former decision established that the paragraph of the answer in question stated a good defense, but it did not purport to prejudge any avoidance thereof that might be interposed. Appell...