Tucker v. Mowrey

• Decision Date: 17 May 1864
• Citation: 12 Mich. 378
• Court: Michigan Supreme Court
• Parties: Augustus P. Tucker and another v. William P. Mowrey

12 Mich. 378

Augustus P. Tucker and another v. William P. Mowrey

Supreme Court of Michigan

May 17, 1864

Argued April 18, 1864

Error to Branch Circuit.

The action below was replevin by Mowrey against the plaintiffs in error, for a horse which had been sold by him to one of them on Sunday. The rulings of the court below sufficiently appear by the opinion.

Judgment of the court affirmed, with costs.

T. M Cooley, for plaintiffs in error, cited Adams v. Hamell, 2 Doug. Mich., 73; 15 N. H., 577; 12 Met. 24; 1 Hill 76; 2 Sandf. 318; 19 Barb. 581.

W. A Moore, contra, referred to 19 Vt. 358; 6 Bing. 653; 3 B & C., 232; 10 Ala. 556.

OPINION

Christiancy J

Can the vendor of property sold and delivered on Sunday, by tendering to the vendee the consideration received, recover back the property as if no such sale had been made?

The court below charged the affirmative of this proposition; and if correct, the judgment must be confirmed. The statute (R. S. of 1846, chap. 43, sec. 1; Comp. L., § 1574) provides that "no person shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except work of necessity or charity, on the first day of the week; and every person so offending shall be punished by a fine not exceeding ten dollars for each offense."

It was held in Adams v. Hamell, 2 Doug. Mich., 73, that this statute rendered void a contract made on Sunday for the exchange of horses, and a note given for the difference.

This decision we fully approve. The statute not only makes it a penal offense, but takes away the legal capacity of the parties to make a contract on that day. And, whether the supposed contract has been executed or remains executory, we think the rights of the parties are to be determined in the same manner as if no such contract had ever been made. The contract as such can neither be set up as the basis of an action, nor as a ground of defense. If it be a contract of sale accompanied by payment and delivery, as supposed in the present case, no property passes, and the vendor, by tendering back what he has received, may reclaim the property, and the vendee, on tendering back the property, may recover the money or property given in payment or exchange, as if no pretense of such contract existed.

Whether the action could be sustained without such tender, is a question which does not arise in the case, and we, therefore, express no opinion upon it. But being utterly void, the contract is incapable of ratification.

Doubtless the subsequent acts and assent of the parties may be such as to create a new contract, but they can not ratify that which is void. And perhaps the acts and conversations of the parties on Sunday, in reference to a contract, might be shown as explanatory of their subsequent acts and conversation tending to show a new contract.

As a general rule, courts of law have left the parties to an executed illegal contract in the positions in which they have placed themselves, refusing to aid either of them, when equally in fault. But this is a question purely of public policy, and...