Cardoze v. Swift
113 Mass. 250
Mass.
1873
Check Treatment
Gray, C. J.

If the contract of sale was made and completed on the Lord’s day, it was unlawful, and neither party was entitled to sue the other, either on the contract itself, or for any deceit practised in procuring it. Robeson v. French, 12 Met. 24. Hall v. Corcoran, 107 Mass. 251, 253. Cranson v. Goss, Ib. 439. The only question in this case is of the effect of the defendant's omission to specify the illegality in his answer.

*252In Jones v. Andover, 10 Allen, 18, where the plaintiff alleged that, while travelling, using due care, on a highway which the defendants were bound to keep in repair, he sustained injury from a defect therein, it was held that under an answer which merely denied all his allegations it might be shown that he was travelling in violation of the Lord’s Day Act. We need not consider how far the reasons of that decision apply to this action of tort for deceit, but may assume, as most favorable to the plaintiff, that his case stands like an action on a contract.

In such an action, a defendant, who has not pleaded illegality in the contract sued on, has no right to offer evidence of such illegality, or even to avail himself of it when disclosed in the plaintiff’s testimony, if the court does not refuse to entertain the case. Granger v. Isley, 2 Gray, 521. Bradford v. Tinkham, 6 Gray, 494. Libby v. Downey, 5 Allen, 299. Goss v. Austin, 11 Allen, 525. But no waiver by the defendant, or consent of parties, can oblige a court of justice to try or enforce a claim which upon the plaintiff’s own showing has no foundation in law. The plaintiff has therefore no ground of exception to the instruction given to the jury. Exceptions overruled.