61 Mo. 335 | Mo. | 1875
delivered the opinion of the court.
This was a proceeding to foreclose a mortgage made by the defendants, to secure the payment of a promissory note for the sum of two thousand aud sixty dollars, executed by the defendant, Benjamin Simes, and dated September 7, 1863. The mortgage was signed on the 12th day of September, and acknowledged on the 17th day of September, 1863. The defendants pleaded in bar of a recovery and foreclosure, that' the consideration of the note sued on was money loaned by the plaintiff to the defendant, Benjamin Simes, and that said loan was made and the note therefor executed on the 6th day of September, 1863, which was the first day of the week, commonly called Sunday.
The cause was tried by the court without the aid of a jury, and judgment was rendered for the plaintiff. The defendants bring the case here by writ of error.
The question presented for our determination bv the instructions which were given and refused by the court below, is, whether the plaintiff can recover if the note in controversy was executed and delivered on Sunday, it being admitted that the money loaned was delivered on that day. Conceding that this contract comes within the prohibition of our statute in relation to the observance of Sunday as a day of rest, on which point we reserve our judgment, the decision of this cause will depend upon the effect to be given to the subsequent execution and delivery by the defendants, on a secular day, of the mortgage made by them to secure the payment of the debt evidenced by this note.
As to the precise nature of the invalidity which attaches to contracts executed upon Sunday, the authorities are numerous and conflicting. In Maine, Massachusetts, and some other states, it is held that such contracts are void and incapable of ratification.
In Vermont the rule is different. In the case of Adams vs. Gay (19 Vermont) Judge Redfield says: “We think contracts made on Sunday should be held an exception, in some sense, from the general class of contracts which are void for illegality; they are illegal only as to the time in which they are entered into; when purged of this ingredient they are like other contracts. Contracts of this kind are not void because
In the case of Tucker vs. West, decided by the Supreme Court of Arkansas, and reported in Cent. Law Jour., vol. 2, p. 607, Chief Justice English concludes, after an elaborate examination of the authorities on the subject, that a note executed and delivered upon Sunday may be ratified “by an express promise made on a week day to pay it.” To the same effect are Heller vs. Crawford (37 Ind., 279) and Harrison vs. Colton (31 Iowa), and other cases which need not be cited.
The following general rule on this subject, laid down in Gray vs. Hook (4 Comst., 449) is approvingly stated in Woodworth vs. Bennett (43 N. Y., Ct. App., 273): “The distinction between a void and valid new contract in relation to the subject matter of a former illegal one, depends upon the fact, whether the new contract seeks to carry ont or enforce any of the unexecuted provisions of the former contract, or whether it is based upon a moral obligation, growing out of the execution of an agreement which could not be enforced by law, and upon the performance of which the law will raise no implied promise. In the first class of cases, no change in the form of a contract will avoid the illegality of the first consideration, while expressed promises, based upon the last class of considerations, may be sustained.”
In the case of Reeves vs. Butcher (31 N. J. Law Rep., 224) Beasley, Oh. J., speaking in reference to the ratification of Sunday contracts, says: “There is undoubtedly a class of claims which, having a moral, but no legal, efficacy, can be the subjects of ratification. But it is to be remembered that the effect of a ratification is to impart validity to the original agreement. Such act creates no new obligation ; it merely extends the continuance of, or legalizes, one already in exist- . once. The maxim of the law is,(Omnisratihabilio retro trahitur el mandato priori equi paratur? It follows, therefore, as a consequence which is entirely unavoidable, that there
The foregoing extract commends itself to our judgment as a logical and perspicuous presentation of the true rule upon this subject. There is no decision of this court directly applicable to the point now under consideration.
As the law will not aid either party to an illegal transaction, by implying, from-the circumstances or subject matter of such transaction, auy obligation on the part of either, which it will enforce, a new express promise must always appear in order to create any legal obligation, and where the original consideration was immoral or illegal, of course no new promise based thereon can be of any avail. But in the case at bar the original consideration was neither immoral nor illegal. The promise alone is infected with the taint of illegality.
There was certainly a moral obligation resting upon the defendant Simes to return, or in some way account for, the money received by him from the plaintiff on Sunday, although the law would not imply any promise on his part from such moral obligation. This obligation, however, was a sufficient consideration to support an express promise, made at a time not prohibited by law, to repay this money. But the original promise cannot thereby be removed from under the interdict of f,he statute, and the declaration should be upon the new promise.
In this case a new promise is found over the hands and seals of the defendants, in the mortgage which the plaintiff seeks to foreclose. It recites the receipt of a consideration of two thousand and sixty dollars, the giving of the note herein conceded to be illegal, and stipulates that if the money specified in said note shall not be paid at the time designated therein, then the conveyance thereby made shall remain in full force. This conveyance is in law an enforceable security for the payment of the debt which it recognizes or recites;
The judgment is affirmed.