Troewert v. Decker

• Decision Date: 11 January 1881
• Parties: TROEWERT, ADM'R, v. DECKER.
• Court: Wisconsin Supreme Court

51 Wis. 46

8 N.W. 26

TROEWERT, ADM'R,

v.DECKER.

Supreme Court of Wisconsin.

Filed January 11, 1881.

Appeal from circuit court, Sheboygan county.

Wm. H. Seaman, for respondent.

Conrad Krez, for appellant.

CASSODY, J.

This action is to recover for a sum of money alleged to have been “lent” to the defendant at his request, upon his promise to pay back the same whenever thereunto requested, but which had never been paid to the intestate, nor to the plaintiff as administrator, although the defendant had often been requested to repay the same before the commencement of this action. The answer “admits the receipt of the money,” but alleges that it was paid to him, and the contract and promise to repay the same were made on Sunday, and therefore denies the indebtedness. The undisputed evidence shows that the loan and promise were made on a Sunday. The court found that the defendant had and received the money from the deceased on Sunday, “to be repaid * * * on demand,” but that the defendant had “failed and neglected to repay” the same or any part thereof, and as a conclusion of law that the plaintiff was entitled to recover the amount due.

Section 4595, Rev. St., provides, among other things, that “any person who shall * * * do any manner of labor, business, or work, except only works of necessity and charity, * * * on the first day of the week, shall be punished by fine not exceeding ten dollars.” The court does not find, and there is no evidence to show, that the case comes within the exception named in the statute. The loan of money, and the promise to repay, alleged in the complaint and admitted in the answer, were clearly “business,” within the meaning of this section, and hence it was presumptively illegal. If it was possible to bring the case within the exception named in the statute, the burden was on the plaintiff to do so. Bosworth v. Swanson, 10 Met. 363; Jones v. Andover, 10 Allen, 18, 21;Hinckley v. Penobscot, 42 Me. 89. But it is urged by counsel with some plausibility, that, although the contract was illegal and void, yet that the subsequent retention of the money without offering to return it, and the using of it, and the refusing to pay it back, constituted a ratification, and an implied promise to repay upon each subsequent secular day. In support of this theory counsel cite Williams v. Paul, 6 Bing. 653; Adams v. Gay, 19 Vt. 358;Gummer v. Jones, 24 Vt. 316; Brown v. Timmony, 20 Ohio, 82;Tucker v. Mowry, 12 Mich. 378;Dodson v. Harris, 10 Ala. 566; Sayre v. Wheeler, 31 Iowa, 112.

In Williams v. Paul the bargain was made on Saturday, and the price to be subsequently paid was agreed upon at the same time, subject to the defendant's approval of the property upon inspection the next morning, which was Sunday. Accordingly, on Sunday the inspection was had and the property approved and delivered. Subsequently, the defendant being applied to for the price, said he would settle at a time named. Failing to do so, an action was brought for the price and the plaintiff recovered a verdict, and the rule nisi to set it aside and enter a nonsuit under the statute of 29 Charles II. c. 7, substantially like ours, was discharged by the court of common pleas. Park, J., stated the grounds thus: “Here it appears that the defendant not only retained the animal, but made a new promise to pay subsequently to the Sunday, and his present refusal is not consistent with the practice of a very sincere Christian.” Eight years after, in Simpson v. Nicholls, 3 Mees. & W. 240, 244, and a note to that case found in 5 Mees. & W. 702, it was “doubted whether the case of Williams v. Paul could be supported in law,” on the ground “that although the contract was void as being made on a Sunday, yet as the property in the goods passed by delivery, the promise made on the following day to pay for them could not constitute any new consideration;” and the court of exchequer held on demurrer that the plaintiff could not recover the value, on the ground that defendant, after the sale and delivery of the goods, kept them for his own use without returning or offering to return them.

In Zuckerman v. Hinckley, 9 Allen, 454, it is said by Chapman, J., that “the case of Williams v. Paul, 6 Bing. 653, * * * is not to be relied on.” In Kountz v. Dickson, 40 Miss. 341, 345-6, the court said: “We have examined these cases, (among which are Williams v. Paul and Adams v. Gay, 19 Vt. 369,supra,) * * * and we are constrained to say that they are founded on reasons which appear to us to set aside the most revered and firmly-settled principles of law applicable to the subject of illegal contracts. Were we to follow them we should have to overrule principles repeatedly and invariably recognized by this court.” In Bantelle v. Melendy, 19 N. H. 196,Williams v. Paul is overruled, and the case of Simpson v. Nicholls, supra, followed, and the court held that “an illegal contract is incapable of ratification or of becoming the consideration of a subsequent promise.” Williams v. Paul was followed in Adams v. Gay, supra, but in the later case of Sumner v. Jones, 24 Vt. 317, the court said: “Whatever may be the views of the English courts in relation to the case of Williams v. Paul, that case has been referred to in all the above cases, (Barron v. Petles, 18 Vt. 385;Adams v. Gay, 19 Vt. 358;Sargent v. Butts, 21 Vt. 99;) in some without the expression of any satisfaction, and in others by a direct approval of its doctrine. The principle of these cases must decide the present.” And on page 322 the court said: “It is evident that the English authorities have not gone to this extent,” (an affirmation and promise to pay the note implied by the retention of the goods as sufficient to sustain an action;) “for while it has been held that a subsequent promise is sufficient to sustain a recovery for the value of the property, it has never been held in those courts that a promise can be implied from the mere fact of a retention of the property, or that subsequent payments are equivalent to an express promise.” In that case it was held that a note given on Sunday for a horse then purchased, and subsequent partial payments, and retention of the horse without offering to return the same, was such a ratification as would maintain a suit for the balance on the note. But this decision, as we have seen, was based upon former decisionsin that state, acknowledged to be in conflict with the later English cases, and certainly in direct conflict with the whole current of Massachusetts cases. Meyers v. Meinrath, 101 Mass. 366. In this last case it was expressly held that “an action will not lie for the conversion of a chattel sold and delivered by the plaintiff to the defendant in exchange for another chattel on the Lord's day, and retained by the defendant afterwards, notwithstanding the return by the plaintiff of the chattel for which it was exchanged, and his demand for a corresponding return by the defendant.” The later English cases, the New Hampshire and Massachusetts cases, are also followed in Maine. Pope v. Linn, 50 Me. 83.

In the case of Tucker v. Mowry, 12 Mich. 378, it was held that the contract of sale and delivery made on Sunday was so utterly void that no title passed, and that therefore the vendor might on a subsequent day tender back the price and recover the property. No case is cited in...