Moseley v. Vanhooser

• Decision Date: 31 December 1880
• Citation: 74 Tenn. 286
• Parties: M. B. MOSELEY v. A. F. VANHOOSER.
• Court: Tennessee Supreme Court

74 Tenn. 286

M. B. MOSELEY

v.A. F. VANHOOSER.

Supreme Court of Tennessee.

December Term, 1880.

FROM JACKSON.

Appeal in error from the Circuit Court of Jackson county. N. W. MCCONNELL, J.

E. L. & J. A. GARDENHIRE for Moseley.

R. A. COX for Vanhooser.

E. H. EWING, Sp. J., delivered the opinion of the court.

This was an action of replevin for a yoke of oxen, brought by the plaintiff in error. It was submitted to the circuit judge without a jury. He was of opinion that the proof preponderated in favor of the defendant and gave judgment accordingly. We scarcely agree with the judge in regard to the preponderance of the proof, but should not think of reversing his judgment upon this ground. The scales were too nearly balanced to justify this course, upon the well-settled practice of this court.

A ground, however, was taken below, and is insisted on here, which demands further consideration. The oxen, the subject of the litigation, are said to have been sold (if sold at all) by the plaintiff to the defendant on Sunday. This, it is said, appeared in proof and was brought to the notice of the circuit judge, who notwithstanding rendered judgment in favor of the defendant. It is insisted now that a sale made on Sunday is void as against the statute upon the subject, and as contrary to public policy, and that the sale being void, left the property where it was, viz., the property of the assumed seller in this case, the plaintiff.

In support of this view, sec. 1723 of the Code is referred to, which is as follows: “If any merchant, artificer, tradesman, farmer or other person shall be guilty of doing or exercising any of the common avocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county, forfeit and pay three dollars, one-half to the person who will sue for the same, the other half for the use of the county.” It is insisted that this statute forbids the sale and purchase of cattle on Sunday under a penalty, and that a contract made in violation of it is void, and the case of Amis v. Kyle, 2 Yer., 33, is cited as authority for this position. It is further insisted that the contract is in violation of public policy and therefore void, and the cases of Stillman v. Looney, 3 Cold., 21 and, and of Parks v. McKay, 3 Head, 297, and especially Wetmore v. Brien & Bradley, 3 Head, 723, are cited; see, also, Perkins v. Watkins, 2 Baxt., 187.

To these positions of the...