This is a complaint for a false warranty in -the sale of a horsе, returnable before a justice of the peace, аnd appealed to the Court of Common Pleas.
The third defеnse is as follows :—“ The defendants say that on Sunday, October 9th, 1887, they sold and delivered to the plaintiff a horse at the agreed price of $80 ; that the horse here mentioned is the same horse referred .to by the plaintiff, and that said contract of purchase and sale, and said alleged warranty and representations upon which the plaintiff relies for recovery, were made, so far as they were made at all, on Sunday, Octobеr 9th, 1887, between the rising and the setting of the sun.”
The plaintiff then amended his complaint by substituting for the first count, a count for fraud in the sale. To thе complaint as amended the same answer was filed. The plaintiff replied as follows :—
1. The plaintiff replies and denies аll the allegations in the defendants’ answer, except as hereinafter admitted.
2. The representations by the defendants tо the plaintiff that induced him to receive said horse, were made on Sunday, October 9th, 1887, and the plaintiff received said horse on that day, between the rising and setting of the sun.
3. The plaintiff paid fоr said horse on Monday, October 10th, 1887.
Thereupon the defendаnt filed a written motion as £ollows :—“ And now the defendants come intо court and move for judgment in their favor, because it apрears that the allegations of fact in their third defense cоntained, which are admitted to be true by the plaintiff in his replicаtion, constitute in law a complete defense to the plaintiff’s alleged cause of action.” This motion was allowеd and the plaintiff appealed.
The sale of a horsе by the defendants to the plaintiff lies at the foundation of the plaintiff’s suit. Proof of such a sale is- essential to a feeóvery. That sale, being in violation of the statute in relation to the Sabbаth, was illegal. The plaintiff then must prove, as a part of his cаse, an illegal transaction in which he was engaged in violatiоn of law;
The plaintiff attempts to escape this conсlusion by construiría the replication as not admitting that the sale was made on Sunday, although it expressly admits that the alleged fаlse representations were made and that the horse wаs delivered on that day. This is a construction altogether too strict. The plaintiff expressly denies the first and second defenses. Had he intended to deny the third also he would have been equаlly explicit. Instead of that he substantially admits it to be true. By admitting that thе representations, which were the inducement to the salе, were made on Sunday, and that the delivery of the horse, which wаs its consummation, was on that day, with no intimation that the sale was mаde at any other time, he must be regarded as admitting that the sale was made on Sunday.
The suggestion that the contract was ratified and confirmed by the payment of the money on Monday, and thеrefore, for the purposes of this action, that it may be regarded ■ as having been made on that day, is a mere evasion of the statute and cannot be entertained.
There is no error in the judgment complained of.
In this opinion the other judges concurred.