King v. Graef

• Decision Date: 20 October 1908
• Citation: 117 N.W. 1058,136 Wis. 548
• Parties: KING v. GRAEF ET AL.
• Court: Wisconsin Supreme Court

136 Wis. 548

117 N.W. 1058

KING

v.GRAEF ET AL.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by Ed. King against Anton Graef and another, copartners. From a judgment for plaintiff, defendants appeal. Affirmed.

This action was brought to recover damages for breach of warranty. The defendants shipped a car load of potatoes from Hortonville to Watertown in February, 1906, the car arriving at its destination on Sunday morning, February 9th. During the day the agent of the defendants, who was in charge of the car, made an oral agreement with the plaintiff, whereby he agreed to sell the plaintiff the car load of potatoes at 58 cents per bushel. The evidence further tended to show that the agent represented that the car of potatoes sold was as good in every respect as other potatoes formerly sold by the defendants to the plaintiff, and that the potatoes formerly sold were a good merchantable article. Nothing more was done by the parties on Sunday, but on Monday morning the potatoes in the car were weighed, some 20 sacks in the car were opened and examined, and the potatoes were delivered to the plaintiff, and were paid for by him without any further examination, or without any opportunity to examine them, except by unloading them from the car and opening the sacks. The testimony also tended to show that on Monday the agent in charge of the potatoes represented to the plaintiff that all of the potatoes in the car were as good in quality as those examined, and that plaintiff relied on such statement. Upon unloading the car it was found that 100 bushels of the potatoes contained therein were frozen, and the evidence tended to show that they were frozen in transit, probably becase of an accident to the car at Fond du Lac. On February 13th the plaintiff notified the defendants of the condition of the potatoes, and demanded settlement for the worthless potatoes found in the car. Payment was refused, and this action was brought, which resulted in a trial and judgment for the plaintiff, for damages sustained by reason of the potatoes in the car being frozen, from which judgment this appeal is taken. Two errors are alleged: (1) That the contract was made on Sunday, and is therefore void, and cannot furnish any basis for recovery in any action; (2) that no express or implied warranty followed the sale, in any event, and that therefore the plaintiff could not recover.A. M. Spencer, for appellants.

Gustav Buchheit and Giles H. Putnam, for respondent.

BARNES, J. (after stating the facts as above).

It is well settled that contracts made in violation of the statute forbidding the doing of any business on Sunday are void, and cannot be made the basis of a recovery in the law. Pearson v. Kelly, 122 Wis. 660, 664, 100 N. W. 1064;Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787;Thomas v. Hatch, 53 Wis. 296, 10 N. W. 393;Howe v. Ballard, 113 Wis. 375, 89 N. W. 136;Brown v. Gates, 120 Wis. 349, 97 N. W. 221, 98 N. W. 205. Neither can a contract made on Sunday be validated by proving acts tending to show a ratification, because such a contract is void, and is not susceptible of ratification. Jacobson v. Bentzler, 127 Wis. 566, 107 N. W. 7, 4 L. R. A. (N. S.) 1151, 115 Am. St. Rep. 1052;Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808; Brown v. Gates, supra; Vinz v. Beatty, supra; Sherry v. Madler, 123 Wis. 621, 101 N. W. 1095. If the acts done on Monday were mere incidents to the Sunday transaction, they would not save it from the condemnation of the statute. Jacobson v. Bentzler, supra. It follows that, in determining the rights of the parties here, the Sunday transaction must be eliminated from consideration. In this case the potatoes were not weighed nor delivered until Monday, and no part of the purchase price was paid until Monday. The agreement of Sunday was void under the statute of frauds (section 2308, St. 1898), even...