McAuliffe v. Vaughan
| Decision Date | 18 February 1911 |
| Citation | 70 S.E. 322,135 Ga. 852 |
| Parties | McAULIFFE v. VAUGHAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a person who had been conducting and publishing a newspaper made a contract to sell the property, business, and good will to another person, who was in the employment of the publisher of a different newspaper, such a contract was not freed from the invalidity arising from having been made on Sunday, on the ground that selling and buying newspapers was not the ordinary business of either party.
Although a contract for the sale of a newspaper outfit and the good will of the business may have been invalid, because it was made on Sunday, yet where possession of the property had been delivered on a week day, before the signing of the contract to one who, in the original negotiations, was expected to be a copurchaser, but who did not sign the written contract finally executed, though forming a partnership with the purchaser, and where, after the contract was signed, the purchaser retained possession, and (having paid one installment of the purchase money when the contract was made) paid the balance in installments on other days than Sunday and the seller received them without objection because of the time when the contract was signed, the parties thereby ratified such contract, and its terms were enforceable as if it had not been made on Sunday.
Where one who had been engaged in publishing a newspaper in a certain county sold the property connected therewith and the business and good will to another, and agreed not to conduct either directly or indirectly, any other newspaper in that county without the consent of the other party, his heirs, and assigns, such a contract was not void, as being in general restraint of trade or unreasonable in its terms.
In such a contract, the amount paid by the purchaser furnished a consideration, not only for the transfer of the physical property, but also for the business and good will, and for the agreement of the seller not to conduct another newspaper in the same county.
Although the installments of purchase money may not have been paid on the exact days when they were due under the contract, yet where the seller received them afterward, he could not claim that this was such a breach on the part of the buyer as authorized him to disregard the agreement not to conduct another newspaper in that county.
The seller having sold the property and made the contract under seal in his own name, it furnished no defense to a proceeding to enjoin him from conducting another newspaper in the same county, in violation of the contract, to set up that the property which he sold actually belonged to his wife, and that he had no pecuniary interest in it.
Error from Superior Court, Baldwin County; H. G. Lewis, Judge.
Action by J. C. McAuliffe against W. J. Vaughan. Judgment for defendant, and plaintiff brings error. Reversed.
D. S. & D. B. Sanford and Hines & Vinson, for plaintiff in error.
Allen & Pottle and W. T. Davidson, for defendant in error.
LUMPKIN J. (after stating the facts as above.)
The denial of the interlocutory injunction was evidently based, not upon conflicting evidence in regard to controlling issues, but on the idea that the contract was void. The Code of this state does not contain any direct statement that contracts made on Sunday are void. That result is generally reached through a consideration of two sections. Section 422 of the Penal Code of 1895 (Pen. Code 1910, § 416) declares that "any person who shall pursue his business, or the work of his ordinary calling, on the Lord's Day, works of necessity or charity only excepted, shall be guilty of a misdemeanor." By section 3668 of the Civil Code of 1895 (Civ. Code 1910, § 4253) it is declared that "a contract which is against the public policy of the law cannot be enforced." It has been held therefore that where one, in pursuing his business or the work of his ordinary calling on the Sabbath, makes a contract, it is invalid, and cannot be enforced.
1. It was contended that, inasmuch as Vaughan's business was carrying on a newspaper, or, as he expressed it in his answer, that of a "printer," and that of McAuliffe was employment connected with another newspaper, the sale and purchase of a newspaper and outfit was not within the ordinary business or calling of either of them. This contention is unsound. In Morgan v. Bailey, 59 Ga 683, "where a farmer, a part of whose ordinary business was the purchase and cultivation of land, bought a tract of land on Saturday, and agreed to consummate the trade on the next day by signing the necessary papers, and did sign a note for the purchase money on that day (Sunday)," it was held "that the contract was illegal, and, in a suit on the note, the courts would not assist in its collection." Thus buying land in bulk for farming purposes was considered to be so connected with the business of farming that such a contract made on Sunday was illegal. It would be a very narrow verbal construction to hold that, if one merchant contracted to buy out the stock of another on Sunday for the purpose of continuing the mercantile business, he could say that the contract was not invalid because his business or ordinary calling was to sell at retail, and not to buy entire stocks of goods, or to rule that a manufacturer might proceed on Sunday with the erection of a building to be used in connection with his business, on the ground that manufacturing, not building, was his ordinary business. We think that the contract before us does not escape the test of having been executed on Sunday on...
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