Pearson v. Kelly, 122 Wis. 660

Pearson v. Kelly

122 Wis. 660 | Wis. | 1904

SiebecKek, J.

This is an action to recover the sum of $76.50, which is claimed to be due as wages for fifty-nine and three-fourths days of service rendered to the defendant. It is alleged that this sum is due upon an express contract, whereby defendant agreed to pay plaintiff for the services at his logging camp at the rate of $35 per month. That the services were rendered, and for the period alleged, is not denied, but it is claimed that the contract for services stipulated that, if the plaintiff should remain and continue in defendant’s employ until the logging job upon which defendant was then employed should be completed, he would pay him at the rate of $35 per month, otherwise the compensation should be at the rate of $1 per day for the period of service. It appears that plaintiff did not remain in defendant’s employ until the logging job in question was completed. The defendant tendered plaintiff payment for the services at the rate of $1 per day, and this was rejected.

The complaint alleges no claim upon quantum meruit, nor was any proof offered of the value of the services. If a recovery is had, it must be on the contract established by the plaintiff. The undisputed evidence establishes that the contract relied upon was made on Sunday. It has been repeatedly *664beld by this court that contracts made in violation of the statute forbidding the doing of any business on Sunday are void and cannot be made the basis of a recovery in the law. Vinz v. Beatty, 61 Wis. 645, 21 N. W. 787; Thomas v. Hatch, 53 Wis. 296, 10 N. W. 393; Howe v. Ballard, 113 Wis. 375, 89 N. W. 136; Brown v. Gates, 120 Wis. 349, 97 N. W. 221. Defendant does not assert the invalidity of the contract in his answer upon the ground that it was made on Sunday, but alleges the agreement differed from the one relied upon by the plaintiff in his complaint. This, however, does not preclude him from insisting that plaintiff cannot enforce a contract made in violation of the Sunday law. As observed in the case of Cohn v. Heimbauch, 86 Wis. 176, 56 N. W. 638: “The courts will neither enforce nor set aside a contract which is illegal (and npt fraudulent) from being made on Sunday.” This is upon the principle that purity in the administration of the law forbids courts from entertaining a suit upon a cause of action arising out of a contract in violation of a statute, or which is void as against public policy. 'To entertain such actions would aid the parties to enforce agreements which are repugnant to public policy. Parties to such an agreement are deemed equally guilty in the eye of the law, and must be left to suffer the consequences of their transgression and meet with the disapproval of the courts, in denying them the usual remedies of the law. Melchoir v. McCarty, 31 Wis. 252; Clarke v. Lincoln L. Co. 59 Wis. 655, 18 N. W. 492, and cases cited. The consequence is that plaintiff failed to show any ground upon which a recovery can be predicated, and his complaint should be dismissed.

Though this conclusion disposes of the case, one of the errors assigned needs to be specially noted. Before argument was made or waived, defendant requested a special verdict if the case was submitted to the jury. This the court refused, but submitted the case to the jury for a general verdict. There is nothing to show upon what ground that re*665quest was disregarded or refused. The statute (sec. 2858, Stats. 1898) is plaiu and clearly mandatory in terms, and requires tbe court to submit special verdicts covering tbe material issues of fact when requested by tbe parties. Gatzow v. Buening, 106 Wis. 1, 81 N. W. 1003; Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514. It was error to refuse tbe request and to submit tbe case for a general verdict. Defendant’s motion for a new trial should bave been .granted upon this ground, since tbe court ruled that plaintiff’s right to recover was to be submitted to tbe jury upon tbe -evidence. This reverses tbe court’s ruling upon tbe motion for a new trial, and relieves defendant from the motion costs imposed upon him, and disposes of tbe question of whether those motion costs were properly allowed against him..

By the Court. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for further proceedings according to law.