100 Mich. 190 | Mich. | 1894
Lead Opinion
Plaintiff and defendant traded horses, defendant paying $10 in exchange. The horse which plaintiff received from defendant was, at the time of the trade, affected with the glanders. Plaintiff called defendant’s attention to the fact that the horse had some disease, to which defendant replied that it was only the distemper. The evidence of plaintiff tends strongly to show that defendant knew that the horse had the glanders. Plaintiff, without any demand or notice of rescission or offer to return the horse and the $10, brought this action of replevin. The court directed a verdict for defendant.
Judgment affirmed.
Dissenting Opinion
(dissenting). The only question in the case is whether the court erred in holding that the plaintiff was not entitled to replevy his horse without returning the
fiIt was decided in Tucker v. Mowrey, 12 Mich. 378, that, under the statutes of this State, a sale of property made on Sunday was absolutely void, and that thé contract of sale could neither be set up as a basis of an action nor as a ground of defense. Each party was therefore entitled to demand and recover what he had delivered or paid under the contract. This follows from the absolute prohibition of business and labor on that day when it is not work of necessity or charity.” Benedict v. Bachelder, 24 Mich. 425; Allen v. Duffie, 43 Id. 1; Winfield v. Dodge, 45 Id. 355; Adams v. Hamell, 2 Doug. 73. See, also, Arbuckle v. Reaume, 96 Mich. 244, and cases cited.
I am unable to distinguish the case at bar from that of a Sunday contract. Our attention is not called to any statute which declares such contracts void, but the cases cited, treating .them as illegal contracts, hold them to be void. It would seem, then, that, this contract being void, it cannot be made the basis of a defense to an action of replevin where the plaintiff did not participate in the transgression of the law. See Cotton v. Thurland, 5 Term R. 405; Lacaussade v. White, 7 Id. 535; Parker v. Rochester, 4 Johns. Ch. 332. Hnder the Michigan cases cited, the defendant had no right to the horse received by him as against the plaintiff; and while it would have been proper
I think the judgment of the circuit court should be reversed.