Howe v. Ballard, 113 Wis. 375

Howe v. Ballard

113 Wis. 375 | Wis. | 1902

MaRShall, J.

The vital question for consideration is this: Ts a promissory note, made and delivered in the state of Ken-ducky on the Sabbath day, in settlement of an account for merchandise, such making and delivery being part of a business transaction involving the collection of such account, valid 'by the Kentucky law 1 Erom the manner the question suggested is presented here, we apprehend that there was a similar presentation in the trial court, and that it was there assumed that the unwritten law of Kentucky, consisting of the decisions of its highest court construing the statute in question, was before the court for consideration without proof thereof. If so, manifestly, the court committed error. The *378statutes of another state and tbe decisions of its courts as well can only be considered by tbe courts of tbis state, when material to prove some fact essential to a cause of action or defense, when put in evidence in tbe way pointed out by our statutory rules of evidence (secs. 4136, 4138, Stats. 1898),. unless some other method is adopted by stipulation of tbe parties. No proof was offered in tbis case as to tbe unwritten law of Kentucky. Tbe trial court did not have notice of the judicial decisions of that state which have been cited to our attention. Neither have we such notice. Slaughter v. Bernards, 88 Wis. 111. Tbe case must therefore be decided without their aid, though we will say in passing that it does not seem that they would vary the conclusion we have reached if' they were in evidence in the case.

It is considered that if the validity of the note were to be-tested by the statutes of this state it would be held void. There-can be no question abont that. A comparison of snch statute-with the Kentucky law fails to make any difference between the two, if one exists, sufficiently significant to be discoverable. The language of the Kentucky law is:

“No work or business shall be done on the Sabbath day,”' etc. “If any person on the Sabbath day shall himself be-found at his own or any other trade or calling,” etc., “he shall be fined,” etc. Ky. Stats. § 1321.

The language of the Wisconsin statute is:

“Any person who shall ... do any manner of labor or business or work,” etc., “on the Sabbath day, shall be punished,” etc. Stats. 1898, sec. 4595.

Both statutes clearly prohibit the doing of any business on the Sabbath day,' with certain exceptions not affecting this, case. Loaning money and taking a note therefor is business-within the meaning of the statute. Troewert v. Decker, 51 Wis. 46. By the same reasoning the settlement of an old account for merchandise sold, and the talcing of a note therefor,, is business. Such acts by a person are business of his own,. *379are tbe following of ‘Tris own trade and calling,” witbin the-literal sense of tbe language of tbe Kentucky statute. In tbe absence of proof to tbe contrary, where proof of a foreign law is material to a cause of action or defense, and none is produced, we must presume tbat our own law on tbe same subject, and sucb foreign law, similarly worded, bave tbe same-meaning. Slaughter v. Bernards, supra. It follows necessarily tbat tbe note in question must be beld to be void by the-Kentucky law tbe same as it would be by tbe law of tbis state if it bad been made and delivered bere under tbe same circumstances as it was made and delivered there. Tbat conclusion renders consideration of any other question presented on tbe appeal unnecessary.

By the Court. — Tbe judgment is reversed and tbe cause remanded with directions to render judgment dismissing .the complaint with costs.