40 Miss. 341 | Miss. | 1866
delivered the opinion of the court..
The appellant filed his petition in the Special Court of
JACKSON, December 8, 1864.
Due John Kountz, 9 bales cotton.
C. R. DicKsoN and N. PmcE.
Alleging that said due-bill was executed in consideration of an agreement made by said Dickson and Price with the agent of petitioner for an exchange of salt for cotton, pound'for pound, and that said agent delivered to them five thousand one hundred and twenty pounds of salt, belonging to petitioner, and they executed said due-bill, etc.
The case turned on the amended answer of the defendants, which stated that the contract on which the due-bill was founded was made on the Sabbath-day, and that the consideration being illegal, the contract sought to be enforced was void. The petitioner took the deposition of Reinheimer, who testified that in September, 1864, he saw petitioner in Mobile, and he requested him, the witness, to see Dickson or Price, and ascertain whether either of them wanted to exchange cotton for salt, Kountz having salt in Jackson; the cotton to be good and well baled, and to be exchanged pound for' pound. The day after witness returned to Jackson, he met Dickson and asked him about it, and he said he wanted to see Price, who was absent, but he would telegraph him about it; that a few days after this, on Sunday morning, Dickson came to witness’s shop and asked him who was agent for the salt, that Price wanted it that day; and witness told him he was not petitioner’s agent, but he was a friend of his, and that witness would make the arrangement or take the responsibility of so doing, exchanging a pound of salt for a pound of cotton; and that Dickson told witness to givé him the order for the salt, that he might get and send it to Price that evening, and that he would make the arrangement on these terms ; that when Price' came to Jackson, witness told him he ought to do justice to • Kountz, and he said he would; that it was all right; that witness telegraphed to Kountz to come to Jackson and settle the mat
The decree dismissed the petition, and this appeal was taken.
The first question is, whether the act of Reinheimer, in selling and delivering the salt, was binding on the appellant.
The next question is, whether the contract sought to be enforced comes within the inhibition of the statute, Rev. Code, 609, article 226,which enacts that “ no merchant, shop-keeper, or other person, except apothecaries and druggists, shall keep open store, or dispose of any wares or merchandise, goods or chattels, on Sunday, or sell or barter the same,” upon penalty therein prescribed. It is not denied that the salt, for which the note was given, was sold and delivered on Sunday; - and it is clear that the note was founded solely on that consideration, and was executed for the purpose of securing to the appellant the benefit of the contract agreed on at the time of the sale. It is conceded by counsel for the appellant, that the note would have been illegal and void if it had been executed on Sunday. But it is insisted that, inasmuch as the sale was void, the salt remained the property of the appellant; and that the execution of the note on a subsequent day was an affirmance of the contract, which was originally void, and rendered the subsequent transaction valid; that the salt being the property of the appellant, in consequence of the prior sale being void, was a good consideration for the note, which became a new and substantive contract, relieved of the previous illegality.
This doctrine, it must be admitted, is sanctioned by several cases cited in behalf of the appellant, Williams v. Paul, 6 Bing. 653; Bloxsome v. Williams, 3 Barn. & Cress. 232; Adams
Before adverting to the true rules governing the question, it must be borne in mind, that the contract was fully agreed on between the parties to it on Sunday, and the goods were delivered to the purchaser on the same day; and that nothing was done in the completion of it, on the subsequent day, but the execution of the note, which was wholly ini consideration of the sale and delivery of the goods on the previous day. There is no question that the sole consideration of the note was the previous sale, and there can be no. doubt that, in law, it is but evidence of the contract proceeding from the sale, and was founded wholly on that contract. It is, therefore, but a continuation of that contract, and must stand or fall by the consideration on which it rests.
The principles applicable to such cases are so familiar to every one, that a statement of them would be inexcusable, were they not set at naught by the doctrines held in the cases above . cited. We must therefore recur to these principles, which we supposed had ripened into axioms of the law, commanding universal respect.
“The principle of public policy is this,” says Lord Mansfield, in Ilobncm v. Jo/mson, (Cowp.) “Ex dolo malo non oritur actio — -No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the country, then the court says he has no right to be assisted.” See Cuthbert v. Haley, 8 J. R., 394.
Not to cite the almost numberless authorities, in England and this country, affirming this principle, and applying it to all sorts of contracts founded on illegal considerations, and to all
“ The original contract being void,” says the court, in Collins v. McCargo, 6 S. & M., “no valid agreement could be made to rest on tbe same consideration. They are all void, so long as they can be traced back, and made to depend upon tbe original illegal consideration.”
Again, quoting and adopting tbe following rule as stated in Armstrong v. Toler, 11 Wheat. 258, “where tbe contract grows-immediately out of, and is connected with, an illegal or immoral act, a court will not lend its aid to enforce it. But if tbe promise be unconnected with tbe illegal act, and is founded on a new consideration, it is not tainted by tbe act.” Wooten v. Miller, 7 S. & M. 386.
Again, “ where tbe consideration of a contract is impeached for illegality, if tbe subject-matter of it can be traced back to an original illegal contract, tbe substituted security is void.” 14 S. & M. 29; Adams v. Rowam, 8 ib. 638; Torrey v. Grant, 10 ib. 97.
. It is worthy of observation, that, in none of tbe cases in England rebed on for tbe appellant, is it attempted to be shown bow the contracts subsequently reduced to form or, as it is said, affirmed, can be relieved of tbe vice of tbe original illegal consideration on wbicb they are founded, or bow they do not come under condemnation of tbe rule stated in Holman v. Johnson. They are meagre in reasoning, and do not appear to be based on any satisfactory principle. Moreover, they are not consistent with other decisions in England on tbe same subject. In Smith v. Sparrow, 4 Bing. 88, Best, Ch. J., said, he would not say that tbe mere inception of a contract on Sunday would avoid it, if completed tbe next day; but if most of the terms were settled on Sunday, and tbe mere signature referred to tbe next day, such a contract could scarcely be supported.
In tbe case in 19 Yermont, there is tbe same absence of reference to tbe principle that illegality of consideration taints tbe contract in its subsequent forms. But it is there said, that “ contracts made on Sunday should be held an exception fi-.om
Several of the cases referred to mention the fact that the
We consider the cases relied on for the appellant rather as injurious judicial refinements, tending to destroy the effect of a statute wisely intended to promote public morals, and to induce the observance of the duties of religion in society, than as founded on sound legal principles; and considering this contract as founded on an illegal consideration, we must apply the well-settled rule of law to it," and hold it to be void.
Let the decree be affirmed.