Stewart v. Thayer
| Decision Date | 24 May 1897 |
| Citation | 47 N.E. 420,168 Mass. 519 |
| Parties | STEWART v. THAYER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert W. Nason, for plaintiff.
George A.C. Ernst, for defendant.
The plaintiff seeks to recover for a balance due him in pursuance of a contract made with the defendant in 1893, by the terms of which the plaintiff was to receive for the services of himself and band, during July and August of that year, $24 for a week of seven days for each man, for the leader double pay, and for the soloist, when there was one, $10. The plaintiff performed his part of the contract, playing with the band at a seaside resort of which the defendant was the proprietor. On Sundays the afternoon concerts began from half past 2 to half past 3, and there were also concerts in the evening. The defense is that, as some of the work and labor contracted for was to be done on the Lord's day, it was forbidden by Pub.St. c. 98, §§ 1, 2. We have no doubt that the contract was an entire one. Miner v. Bradley, 22 Pick. 457, 459; Clark v Baker, 5 Metc. (Mass.) 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350 353; Handy v. Publishing Co., 41 Minn. 188, 42 N.W 872; McClanathan v. Friedel, 85 Hun, 175, 32 N.Y.Supp. 588. If a person makes a contract in violation of the statutes for the observance of the Lord's day, he cannot maintain an action thereon. Hazard v. Day, 14 Allen, 487; Myers v. Meinrath, 101 Mass. 366. Such a contract is absolutely void, and cannot be ratified. Day v. McAllister, 15 Gray, 433; Stevens v. Wood, 127 Mass. 123.
The principal ground on which the plaintiff contends that he is entitled to recover is that the concert might have been licensed, and that, as the plaintiff was ignorant that the defendant had not procured a license, he is entitled to recover, under the principle laid down in Emery v Kempton, 2 Gray, 257, and Roys v. Johnson, 7 Gray, 162. We are of opinion, however, that under Pub.St. c. 98, §§ 1, 2, there was no authority in any person or board to license a concert on the Lord's day, except a concert of sacred music on the evening of that day, and that, as the plaintiff agreed to give concerts on that day, and not merely on the evening thereof, and actually did give them, he is precluded from recovery. The distinction between offenses commited during the daylight of the Lord's day, and after sunset thereof, has been taken since early times. Colonial Laws 1660-72 (Whitmore's Ed.) 189, 190; Colonial Laws 1672-86 (Whitmore's Ed.) 132, 133, 249, 250, 269; Prov.Laws 1692-93, c. 22; 1 Prov.Laws (State Ed.) 58; Prov.Laws 1711-12, c. 6, §§ 14-16; 1 Prov.Laws (State Ed.) 681; Prov.Laws 1727-28, c. 5, § 2; 2 Prov.Laws (State Ed.) 456. In the first statute passed by the commonwealth on the subject (St.1782, c. 23), where the Lord's day is declared to be "the time included between the midnight preceding and the sun setting of the same day," the doing of certain things on the Lord's day is forbidden, and certain other things are prohibited on the evening next preceding or succeeding the Lord's day, and among them is being present "at any concert of music." This statute was repealed by St.1791, c. 58, but its provisions were in substance re-enacted. See Tracy v. Jenks, 15 Pick. 465. This statute, however, differs from the preceding in prohibiting, in section 1, the being present at any concert of music on the Lord's day, or any part thereof, and, in section 5, prohibiting the same thing on the evening next preceding or succeeding the Lord's day. Under St.1816, c. 112, § 1, which contains the words "on any part of the Lord's day or evening," it was held by this court that "the legislature intended Sunday and the evening immediately following sunset on that day, and not the evening immediately preceding Sunday." Commonwealth v. Newton, 8 Pick. 234. Rev.St. c. 50, § 4, follows the statute of 1791 in its definition of the time included in the Lord's day, and section 5 provides: "No person shall be present at any game, sport, play or public diversion, except concerts of sacred music, upon the evening next preceding or following the Lord's day." This, we believe, is the first time that concerts of sacred music are mentioned in our statutes relating to the observance of Sunday. Nothing is said about such concerts in the draft prepared by the commissioners, which followed the previous statutes. Rev.St. c. 50, § 3, related to inn holders, retailers of spirituous liquors, or other persons keeping a house of public entertainment. This was amended by St.1844, c. 160, so as to include victualers and persons keeping shops, cellars, or any other place of public entertainment or refreshment. For the purposes of this section, so amended, the Lord's day was declared "to include the time between the midnight preceding, and the midnight succeeding said day." By St.1858, c. 151, Rev.St. c. 50, § 5, was repealed, and the following section was enacted: "No person shall be present at any game, sport, play, or public diversion, except concerts of sacred music, upon the evening following the Lord's day; nor upon, the evening next...
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