McKee v. Jones

• Citation: 7 So. 348,67 Miss. 405
• Court: United States State Supreme Court of Mississippi
• Decision Date: 10 March 1890
• Parties: E. F. MCKEE v. J. V. JONES

7 So. 348

67 Miss. 405

E. F. MCKEE v. J. V. JONES

Supreme Court of Mississippi

March 10, 1890

October 1889

FROM the circuit court of Wilkinson county, HON. RALPH NORTH Judge.

J. V Jones brought this suit against E. F. McKee to recover the value of certain horses and mules, which he claims died of the glanders imparted to them by a horse which he purchased of McKee. Plaintiff offered to show that on a certain Sunday McKee called at his home in the state of Louisiana, having two horses which he offered for sale. After examining the horses, he noticed that one of them had a cough, and called attention to it, expressing the fear that it had the glanders and if he bought it his other stock might take the disease. Appellant replied that he would guarantee that it did not have the glanders, and would not communicate it to the other stock. Thereupon the horse was purchased, and the price then agreed upon was paid several days afterwards. The horse, in fact, did have the glanders, and died from it after having imparted the disease to several other horses and mules which also died.

In this action plaintiff seeks to recover damages for the loss of the horse purchased, and also for the loss of the other horses and mules which died from the disease communicated to them by the horse so purchased, relying upon the special warranty that plaintiff's other horses would not take the disease. The defendant filed ten pleas, to most of which demurrers were interposed; but it is unnecessary to state the pleadings.

The defense, briefly stated, is rested upon the ground, [1] that the sale was made on Sunday; and [2] that if the horse sold did, in fact, have the glanders at the time of the sale plaintiff had no knowledge of the fact, and was therefore not liable for the loss of any stock except the horse sold. The bill of exceptions shows that the evidence tending to prove a special warranty against infection to the stock of plaintiff was ruled out by the court, to which plaintiff excepted.

The plaintiff recovered judgment for $ 112.50, being presumably the value of the horse purchased, and from this judgment both the plaintiff and defendant have appealed.

Judgment reversed and cause remanded.

A. G. Shannon, for plaintiff, J. V. Jones.

1. A sale on Sunday is void in this state, because forbidden by the statute. Such sales are valid in several other states, and particularly in Louisiana. The defense therefore that the contract is not enforceable because made on Sunday is not maintainable.

2. We submit that there are three cases in which a seller of diseased stock is liable for the spread of an infectious disease. [1] In case of fraud. 1 Segdwick, 160; Jeffrey v. Bigelow, 13 Wend. 518. [2] Where the animal sold is warranted sound, and [3] where the diseased stock are carried on another's land by a trespasser; or where they are so carried on the land of another under a license given upon the assurance that they are free from disease, or that there is no danger from contact with them. Eaton v. Winnie, 4 Am. Rep. 380.

The defendant relied below on a statute of Louisiana, civil code, art. 2509. It seems clear that this statute on the face of it does not apply to a case where the parties have warranted, by contract, against the spread of an infectious disease.

D. C. Brainlet and H. C. Capell, for defendant, E. F. McKee.

1. The contract was illegal, being made on Sunday. The court below held that the lex loci contractus must govern in this case. This was error. Sunday contracts are exceptions to that rule of law. Had the contract been made in Mississippi on Sunday, plaintiff would have been debarred of any action. Kountz v. Price, 40 Miss. 341; Block v. McMurry, 56 Ib. 217; Bradley v. Rea, 103 Mass. 188.

The last two authorities hold that a sale of horses made on Sunday is illegal, and no action will lie on the warranty. This contract, though made in Louisiana, leaves the parties where they placed themselves so far as our courts are concerned; for, being contrary to our public laws, the law of God, and our policy regarding the interest of religion, morality and the general well-being of society, no right growing out of such a contract can be enforced, or wrong or injury growing therefrom remedied. 6 Peters, 172; 17 Johns. 511; 13 Mass. 23; 6 Wheaton, 331; 5 Ired. 590; 2 Kent, 458; Mahorner v. Hood, 9 S. & M. 247.

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