Jones v. Brantley

• Decision Date: 08 March 1920
• Docket Number: 20990
• Citation: 83 So. 802,121 Miss. 721
• Court: Mississippi Supreme Court
• Parties: JONES v. BRANTLEY

83 So. 802

121 Miss. 721

JONES v. BRANTLEY

No. 20990

Supreme Court of Mississippi

March 8, 1920

March 1920

1. ATTORNEY ENTITLED TO RETAINER THOUGH SOME SERVICES PERFORMED ON SUNDAY.

Where an attorney made a retainer contract with his client on a secular day and stayed in town for ten days at the request of his client, neglecting to attend to other matters waiting to close up the business of his client, he was entitled to recover a reasonable fee as a retainer and a reasonable amount for his time in remaining in town instead of leaving to attend to other matters, though some of the services rendered were performed on Sunday in violation of section 1366, Code 1906 (Hemingway's Code section 1102), such a contract not being an indivisible one.

2 SUNDAY. Services of attorney in rearranging partnership business not work of necessity or charity.

Services rendered by an attorney in rearranging a partnership business is not a work of necessity or charity under Code 1906 section 1366 (Hemingway's Code section 1102) prohibiting the performance of work on Sunday except housework or other work of necessity or charity.

3. SUNDAY. Certain legal services may be performed on Sunday.

There are some services that an attorney may lawfully perform on Sunday, as the law expressly authorizes certain suits and other legal matters to be done on Sunday and where his contract is not an indivisible one the performance of other work on Sunday prohibited by law does not vitiate the entire contract.

HON. H H. ELMORE, Judge.

APPEAL from the circuit court of Humphreys county, HON. H. H. ELMORE, Judge.

Suit by Jesse D. Jones against J. G. Brantley. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

Mayes & Potter, for appellant.

This was a contract, according to the testimony of Mr. Jones in the case, entered into upon a week day, and while some things were done on Sunday, some conferences held, etc., most of the work was done on week days.

In this suit several different performances on the part of Mr. Jones are clearly shown in the testimony, and while the suit is for a lump sum, nevertheless, under proper instructions, if a portion of the work done by Mr. Jones was illegal because such work was done on Sunday in violation of our statute, certain other items shown by the evidence, and several from the others were susceptible of being valued separately and apart from the items that might be illegal.

As stated above, there is one item set out in the evidence of Mr. Jones; that of remaining in Belzoni at the request of the defendant for a period of ten days. This item for which if Mr. Jones' evidence should have been believed by the jury, would have clearly entitled the plaintiff to recover, is now tainted by the violation of the Sunday law. The same is true in the drawing up of the bill of sales, notes, etc., and advice given relative thereto, and other separate items set out in the evidence of the plaintiff.

It is held in 9 Cyc., page 569, that: "Where the agreement of several promises based on several considerations, the fact that one or more of the considerations are illegal will not avoid all the promises, if those which are made of illegal considerations are severed from the others. Thus where goods are sold at a separate price for each article, and the sale of some of the articles is illegal, an action will lie nevertheless for the price of any of the other articles. The same principle applies in proper cases to contracts to pay for labor or services."

We, therefore, insist that at all events it should have been submitted to the jury whether or not Mr. Jones was entitled to recover for those items of work shown by the testimony to have been done on week days under a contract made on week days. There were separate promises based on several considerations. At least in the sense that the consideration for each and every item of work was necessarily a severable consideration, and while no bill of particulars was set out in the declaration, yet the defendant did not ask for a bill of particulars, and on a new trial if it is so desired, the defendant can make a motion to require the plaintiff to particularize the different items of work for which he expects recovery, and if there are items which are illegal because performed on the Sabbath day these items are readily severable from the items of work performed on week days.

Where a contract for work is made on Sunday but performed on week days, while the Sunday contract cannot be enforced, the employee can recover on a "quantum meruit" for services already rendered on week days. Thomas v. Hatch, 53 Wis. 296, 10 N.W. 393.

We submit that this is a case that should have been submitted to a jury on the question of whether or not Mr. Jones should recover for his services, especially for those items of service which there is no evidence to show were in any way tainted by the violation of the Sunday law.

Cashin & Murphy, for appellee.

"Contracts to perform something prohibited by statute are void whether made on Sunday or on a secular day--entire contracts providing for part performance are void where the acts to be performed on Sunday are prohibited by statute; and no recovery can be had for the part performed on a secular day." 27 Am. & Eng. Ency. Law, 410.

According to the well-settled and firmly-established law of Mississippi, a contract of this nature made for the performance of work on Sunday will not be enforced by the courts, but will be treated as an absolute non-action, a legal nullity, and the parties left where they have placed themselves. It is a principle of such universal respect as to have now almost, if not quite, ripened into an axiom of the law, that a contract made for the performance of any manner of work upon the Sabbath is void as against good morals and in contravention of the statute. These principles we suppose to be of such an elementary nature and so familiar to everyone that we do not here burden the court with a citation of the authorities sustaining them. And such a case is this, according to the testimony of appellant and the interpretation placed upon it by counsel.

If appellant is entitled to any relief at all then for services alleged to have been rendered on secular days (in connection with the same subject-matter, be it remembered), and in furtherance of Brantley's design and purpose as disclosed on the Sabbath, such relief would necessarily depend upon the severability of the contract into a number of unrelated, separate, component parts, or into a number of disassociated, disconnected, independent contract, which we say was impossible from the very nature of the contract itself, and which severability features will be discussed later in this brief.

In our own case of Kountz v. Price & Dixon, 40 Miss. 341, we have an action for recovery on a contract executed in consideration of an agreement between appellant and appellees for the exchange of salt for cotton, pound for pound, the complainant alleging the delivery of the salt to defendants and the execution by them of a due bill in favor of complainant. The suit was defended on the ground that the agreement being made and the salt delivered on Sunday (although it was admitted that the due bill or contract was subsequently executed on a secular day). It was void as against good morals and in violation of the Sunday statute. The court held that the contract was void and the subsequent execution of the due bill on a secular day could not affirm the previous contract so as to validate it and relieve it of its taint of illegality, and that the complainant could not recover back his salt or the value thereof, and refused to overrule principles repeatedly and invariably recognized by this court. The opinion goes on to say:

"The principle of public policy is this," says Lord Mansfield, in Holman v. Johnson (Cowp), "Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the country, then the court says he has no right to be assisted." See Cuthbert v. Haley, 8 J. R. 394.

Not to cite the almost numberless authorities in England and this country affirming this principle, and applying it to all sorts of contracts founded on illegal considerations, and to all phases into which they passed we will refer to a few of numerous cases upon the subject in this court. Collins v. McCargo, 6 S. & M. 128; Armstrong v. Toler, 11 Wheat. (U.S.) 258, 6 L.Ed. 468; Wooten v. Miller, 7 S. & M. 386; Coulter v. Robertson, 14 S. & M. 29; Adams v. Rowan, 8 Ib. 638; Torrey v. Grant, 10 Ib. 97."

Having already established that the original contract in the case here presented on appeal was entered into on Sunday, the only distinction to be drawn then between it and the Kountz case, supra, is that in the latter, all the salt was delivered on Sunday, while in this case only part of the services was actually performed on Sunday.

This, therefore, squarely confronts us with the propositions whether the court will lend its aid to enforce a contract. First: Where it grows immediately out of an illegal or immoral act; Second: Where it is connected with an illegal act; Third: Where only a part of the consideration is illegal and out of these grows the question; Fourth: Whether illegal contracts can be divided and held valid in part and invalid in other parts.

We respectfully refer the court to the cases of Wooten v Miller, 7 S. & M. 380, and Armstrong v. Toler, 11 Wheat (U.S.) 258, (6 L.Ed. 468), for an...