Burns & Co. v. Moore & McGee

76 Ala. 339 | Ala. | 1884

SOMKHVILLE, J.

— It can be no ground of sufficient objection, that judgment was rendered, upon the note sued on, against only one of the two defendants who were parties to the suit, and that judgment was rendered, on a proper verdict, in favor of the other defendant. The statute expressly provides, that “ when suit is instituted against several defendants, the plaintiff may recover against one or more, but is liable to costs to those against whom he does not obtain judgment.” — Code, 1876, §§ 2919, 2905 ; Steed v. Barnhill, 71 Ala. 157.

The main question raised by the rulings of the court is, whether the note is void as to the defendant McGee, as a contract executed in violation of the Sunday law. The statute declares, that “ all contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity, are void.” — Code, 1876, § 2138.

The note bears date on Saturday ; but this was only prima facie evidence of the true date of execution, which could be shown by parol proof. — Aldridge v. Br. Bank at Decatur, 17 Ala. 45.

So, it is clearly immaterial, whether the note was signed on Saturday, and delivered on Sunday, or was both signed and delivered on the latter day. The mere writing and signing a note on Sunday, unless it be then delivered, will not avoid it. — Flanagan v. Meyer Co., 41 Ala. 132 ; Love v. Wells, 25 Ind. 503. The date of the making of such a contract, within the meaning of the statute, is, therefore, necessarily the day of its delivery, for the reason that it can have no efficacy or binding force until the act of delivery is performed. — King v. Fleming (72 Ill. 21), 22 Amer. Rep. 131; Butler v. Lee, 11 Ala. 885 ; Clough v. Davis, 9 New Hamp. 500 ; 2 Parsons Cont. 763.

The rulings of the court are in strict harmony with these views.

It will be observed that all contracts, of whatever nature, are rendered void by the statute, if made on Sunday, unless they fall within one of the classes of cases specially excepted. -The law is, therefore, more sweeping in its vitiating effects than the former statute in this State, known as the act of 1803, or the English statute of 29 Charles II, being on the same subject-matter.- — Saltmarsh v. Tuthill, 13 Ala. 390.

It is insisted that the evidence tended to show, that the making of the note in controversy was a case of necessity, and that the court should have submitted this issue to the jnry, as making a case within one of the exceptions of the statute. If there was any evidence introduced on the trial, from which such an inference could be drawn, the question of the sufficiency of this evidence should have undoubtedly been left to the jury for their determination!- — Hooper v. Edwards, 18 Ala. 280; Feital v. Middlesex Railroad, 109 Mass. 398. But the facts of the case tended to establish no such conclusion. The term necessity, as used in such statutes, means more than physical necessity. It is universally construed by the court to involve also considerations of moral fitness and propriety under the peculiar circumstances of the particular case. The design of the law is to preserve, to some extent, the sanctity of the Christian Sabbath, by discouraging indulgence in certain kinds of business of a secular nature. — Smith v. Boston R. R. (120 Mass. 490), 21 Amer. Rep. 538 ; Johnson v. People, 31 Ill. 469 ; Code, 1876, §§ 4443-44. The necessity which will excuse, if not a physical one, must, at least, be a moral emergency which will not reasonably admit of delay, but is so pressing in its nature as to rescue the act done from the imputation of a willful desecration of a day made sacred for certain purposes in morals as well as in law. To this class belongs, as it has been held by this court, a contract by which a creditor secures an indemnity from an absconding debtor, who was pursued and overtaken on Sunday. Hooper v. Edwards, 18 Ala. 280. And an undertaking of bail which is entered into on Sunday. — Hammons v. The State, 59 Ala. 164. Such, too, it has been said, is the act of repairing a defect in a public highway which constantly endangered the safety of travellers. — Flagg v. Inhabitants of Millbury, 4 Cush. (Mass.) 243. And the loading of a vessel where there is danger of navigation being closed. — McGatrick v. Wason, 4 Ohio St. 566. Not so, however, it has been said, with the execution of a promissory note on Sunday, made to procure the discharge of the principal maker, who had been arrested on a charge of bastardy. — Shippy v. Eastwood, 9 Ala. 198. Or the clearing out of a wheel-pit on the Sabbath, for the purpose of preventing the stoppage, on a week day, of mills which employed a large humber of hands. — McGrath v. Mervin (112 Mass. 467), 17 Amer. Rep. 117.

We see in this case no elements of either physical or moral necessity. No emergency is shown which excuses the taking of the note on Sunday. The plaintiff, Burns, who took the note from McGee, is shown to have arrived at Huntsville on Friday, and remained there until Sunday afternon. No excuse is shown for delaying the act until a short time before his departure which bears the appearance of a moral exigency. No excuse is shown for not postponing the act another day, except the mere inconvenience of an ordinary delay in travelling. The court properly charged the jury, that the case did not present one of “ necessity ” within the contemplation of the statute.

Affirmed.