This аction was brought by the appellant upon the official bond executed to it by William G. Whittlesey, as secretary of the water-works of the city, and by David Elkins- and Frank Morris as his sureties. The condition of the bond was that Whittlesey should pay over to the city all sums of money that should come into his hands as such secretary, and thе breach assigned was that after its execution, and after he had entered upon the discharge of his duties, ho received, as: such secretary, the sum of $723.04 from various persons, and, although said sum had been demanded of him and his sureties, and although it was due and unpaid, he and they failed and refused to pay it.
Whittlesey mаde default, and the other appellees answered separately. Each answer contained two paragraphs. The-first paragraph of each was precisely alike. The answer of Frank .Morris was as follows: “Frank Morris, for his separate answer, says that he admits signing the bond in the complaint mеntioned, but says he did not sign said bond on the 15th day of April, 1878, the day it bears date, but that he-signed the same and delivered it to his co-dcfendant Whittlesey on the 14th day of April, 1878, which was the first day of the week, commonly called Sunday, and not any other or different day, and that such signing and delivering were the only acts done by him at the time of the execution of said bond.” A demurrer for the want of facts was overruled to each of these paragraphs, and an exception reserved;
A reply in two paragraphs was filed to the first paragraph of each answer. The first paragraph of the reply was, iix substance, as follows: The plаintiff avers that there existed in the city of Evansville, on the 1st day of April, 1878, what was known as the City Water-Works, by which the city and its citizens were supplied with water; that the water-works were under the management of the common council, a secretary and superintendent of the water-works; that among the duties of the secretary were the collection of water rents and revenues, and the payment of them to the city treasurer; that,
A demurrer, for' thе want of facts, was sustained to each paragraph of the reply, and, the appellant declining to further plead, final judgment was rendered for the appellees.’
The errors assigned are that the court erred in overruling the demurrer .to the first paragraph of each answer, and in sustaining the demurrer to each paragraph of the reply.
The question raised by the first assignment is whether a bond dated on Monday, but which was signed by a surety on Sunday, and on that day delivered by him to the principal therein, who afterwards, on a secular day, delivers it to the obligee who accepts it without notice of such facts, binds thе surety. The delivery of the bond to the principal after the surety has placed his name upon it as a rule authorizes the principal to deliver it to the obligee, for such is the channel through which the paper would properly pass in reaching the obligee. Deardorff v. Foresman,
If the delivery by the surety had been made on a secular day, no question could arise as to the authority of the principal to make the delivery to the obligee, but it was made on Sunday, and it is claimed that this fact vitiated the authority thus conferred, though the bond was not accepted until a secular day. This position is based upon the ground that the act of the surety is in violation of our statute prohibiting persons from engaging in common labor on the Sabbath day. 2 R. S. 1876, page 483. It is well settled that an instrument executed on the Sabbath day can not be enforced as a general rule. Pate v. Wright,
The bond in question, however, was not executed on the Sabbath day, as it was not accepted by the obligee until a secular day. This leads us to enquire whether the statute embraces the case. The ground upon which courts have re
The rule is thus stated in Johns v. Bailey,
Again, in Tuckerman v. Hinkley,
In Sargeant v. Butts,
In Dohoney v. Dohoney,
In Tuckerman v. Hinkley, supra, the defendant had written a letter on Sunday, to the plaintiffs, requesting them to store and sell some iron for him. This request was not accepted or acted upon till Monday or Tuesday. In a suit upon the-contract, it was held that, as the plaintiffs did nothing in contravention of the statute, the defendant’s own wrong would not exonerate him from his obligation.
. In Dickinson v. Richmond,
These cases abundantly show that a party to a contrаct, who has not himself violated the law, is not precluded from enforcing such contract, and that the acceptance of a bond on a secular day, which was signed on the Sabbath, is not a violation of the law. It is also well settled that if some steps are taken toward the execution of a contract on the Sabbath day, but it is not fully consummated until a secular day, such contract is not in contravention of the statute. Beitemnan's Appeal, 55 Pa. St. 183; Merrill v. Downs, 41 N. H. 72; State v. Young,
This bond was not delivered upon the Sаbbath day, and, as' it was not executed until it was delivered, it follows that it was not executed upon the Sabbath day.
In Beitenman’s Appeal, 55 Pa. St. 183, it is said: “ ‘A bond is not perfected until delivery; hence a mere signing on Sun
In Adams v. Gay,
In Lovejoy v. Whipple,
The general principles announced in the foregoing cases show that to bring this case within the inhibition of the statute it must appear that the bond was executed upon the Sabbath day, and this precise point has several times been decided in suits upon bonds executed by sureties in a similar way.
In Prather v. Harlan,
In Commonwealth v. Kendig, 2 Pa. St. 448, a surety signed an official bond on Sunday and delivered it to his principal, who thereafter, on a secular day, delivered it to the obligee; and in a suit upon the bond the court held that the surеty was bound, saying that although the act of signing the bond on Sunday exposed the surety to the penalty imposed by the statute, yet it did not avoid the bond, “for the statute can not destroy that which had no existence.”
In State v. Young,
In Hall v. Parker,
The same was decided in Hilton v. Houghton, 35 Maine, 143, in a suit upon a promissory note executed by sureties in the same way. In all of these cases nothing was done by the sureties but to sign their names and deliver the several instruments to their respective principals, and the cases are, therefore, as we think, precisely in point.
These cases clearly show that a surety who authоrizes his principal, on Sunday, to deliver an instrument signed by the surety on that day is bound by such delivery. The reason is obvious. The authority to make the delivery, but for the statute, is ample and complete. The statute does not affect it, for the reason that it alone prohibits the enforcement of contracts executed on the Sabbath day. If otherwise, it would punish a party who has done no wrong, and would exonerate a party from a civil obligation simply because he had himself violated the law. It would thus shield the guilty and punish the innocent. This it will not do, and hence the authority to make the delivery is unaffected by the statute.
There is anоther and an equally cogent reason why the facts stated constitute no defence. The only thing they legally
We are aware that the case of Davis v. Barger,
It is therefore ordered, upon the foregoing opinion, that the j udgment be and it is hereby in all things reversed, at the appellees’ costs, with instructions to sustain the demurrers to the first paragraph of each of the appellees’ answers.
Petition for a rehearing overruled.