Wetherell v. Hollister

• Decision Date: 02 April 1901
• Citation: 73 Conn. 622,48 A. 826
• Court: Connecticut Supreme Court
• Parties: WETHERELL et al. v. HOLLISTER.

48 A. 826

73 Conn. 622

WETHERELL et al.

v. HOLLISTER.

Supreme Court of Errors of Connecticut.

April 2, 1901.

Appeal from court of common pleas, Hartford county; William S. Case, Judge.

Suit by Arthur J. Wetherell & Son against Wesley Hollister. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

The complaint in this action was the common counts, with a bill of particulars like this: "Wesley Hollister to Arthur J. Wetherell & Son, Dr.: To work done and materials furnished in building roofs for ice house, as per agreement, $223." The defendant made two defenses. The first was this: The defendant admits that on the 5th day of February, 1899, he employed the plaintiffs to build a roof for an ice house for the sum of $223, as set out in the bill of particulars. But the defendant says that said contract was made and completed between the hours of 12 o'clock a. m. and 12 o'clock p. m. of the said 5th day of February, 1899, and that said day was Sunday." The second defense was a counterclaim. The plaintiffs demurred to the first defense as follows: "The plaintiffs demur to the first defense of the defendant's answer because it does not aver that the defendant has returned to the plaintiffs the consideration which the defendant received for the contract therein mentioned." And by way of reply the plaintiffs denied the second defense. The court sustained the plaintiffs' demurrer to the first defense. The issue joined on the second defense was tried to the jury, and the plaintiffs had a verdict. The court accepted the verdict and rendered judgment for the plaintiffs. The defendant has appealed. The errors assigned are the sustaining the plaintiffs' demurrer to the first defense, certain rulings upon evidence, and to the charge.

Edward D. Robbins, for appellant.

Herbert O. Bowers, for appellees.

ANDREWS, C. J. (after stating the facts). In 1889 the legislature enacted that "no person who receives a valuable consideration for a contract express or implied made on a Sunday shall defend any action upon such contract on the ground that it was so made until he restores such consideration." Pub. Acts 1889, p. 72. The complaint alleged that the plaintiffs had furnished materials and rendered services to the defendant of the agreed value of $223. The first defense admits—if not directly, by not denying it—that this allegation was true. It appears, then, that the defendant has received a benefit to the amount and value of $223 under the agreement which he avers was made on a Sunday, and which he seeks to have adjudged void without returning or offering to return that benefit, or showing any reasons why he should not return it. In this court the defendant's counsel argue that the act of 1889 is repealed by the act of 1897, c. 188. This claim cannot be sustained. The act of 1889 is not repealed in terms, and there is no such Inconsistency between the two acts as to show that it was repealed by intendment. The defendant's counsel further argue that the statute of 1889 does not speak of a valuable consideration received under or by way of performance of a Sunday contract. It provides only for a case where a valuable consideration is received for a contract. They say that the cases which were in the minds of those who framed, and of the legislature which enacted, this statute of 1889 were cases where one person pays money to another on a Sunday for his contract to sell property or do work, or gives him any valuable consideration for his contract to pay money or deliver property or do work. We cannot agree with the counsel in this argument. We suppose that the primary purpose of Sunday legislation has been to secure to private citizens the quiet enjoyment of Sunday as a day of rest and to encourage the observance of moral duties, not to enforce an institute of religion. The legislation exempting persons who observe Saturday as a day of rest from the penalty of the Sunday law shows this. Section 1572, Gen. St.; Hamilton v. City of Boston, 14...