1 Pope v. Linn, 50 Me. 83; Tillock v. Webb, 56 Me. 100; Sayre v. Wheeler, 31 Iowa, 112; Day v. McAllister, 15 Gray, 433. See Cranson v. Goss, 107 Mass. 439 (1871), and cases cited. Quaere, whether an action could be maintained upon the original consideration when legal. See Sayre v. Wheelock, supra.
2 State Capital Bank v. Thompson, 42 N. H. 369 (1861); Cranson v. Goss, 107 Mass. 439 (1871).
§ 754. The statute, it will be observed, only prohibits the exercise of business or work of the ordinary calling of the party. The validity of any contract made on Sunday will, therefore, depend upon whether or not it relates to the ordinary calling of the person making it; 3 and it becomes necessary to consider what is intended by this phrase. The "ordinary calling," then, of a man, is understood to embrace all contracts which peculiarly belong to his profession, business, or trade in which he is engaged, and does not extend to ordinary acts done by him, which do not specially relate thereto, although they be incidental and collateral. Thus, if a livery-stable keeper lets a horse on Sunday, this is void, as being within his ordinary calling.4 But the hiring of a laborer by a farmer, though it be incidental to farming, does not peculiarly belong thereto, and has been held not to be within the statute.5 It is perhaps on this ground in part, that a will made on Sunday is held valid, even though the testator was not then in extremis 6 But an agreement made by an attorney on Sunday, binding him personally to the settlement of his client's affairs, has been held not to be good.1 And a contract to publish an advertisement in a paper issued on Sunday, is void, and compensation cannot be recovered.2 In all these cases, however, it must be understood that the act done must come fairly and reasonably within the terms of the statute forbidding it; for as the common law did not render contracts void because made on Sunday, the case must be brought directly within the prohibition of the act. Thus, if the statute forbids only "common labor,"a single contract for the sale of land will not be within its prohibition.3 But money loaned on Sunday cannot be recovered back, where the statute forbids all "secular business" on Sunday.4 And it is held that a valid contract cannot be rescinded on the Sabbath.5 A new promise, made on Sunday, has been held sufficient to remove the bar of the statute of limitations;6 but the decisions are not harmonious on this subject,7 being governed perhaps by the different language of the statutes of the several States.
1 Nason v. Dinsmore, 34 Me. 391.
2 Beitenman's Appeal, 55 Penn. St. 183 (1867).
3 The King v. Whitnash, 7 B. & C. 602; s. c. 1 Man. & Ryl. 452; Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 3 B. & C. 233.
4 Whelden v. Chappel, 8 R. I. 230 (1865). And if the horse or carriage be injured while so unlawfully let, a promise to pay for it is not binding. Tillock v. Webb, 56 Me. 100. See Hall v. Corcoran, 107 Mass. 251.
5 The King v. Whitnash, 7 B. & C. 596. In this case, Mr. Justice Bayley said: "The true construction of the words ' ordinary calling,' seems to me to be, not that without which a trade or business cannot be carried on, but that which the ordinary duties of the calling bring into continued action. Those things which are repeated daily or weekly in the course of trade or business are parts of the ordinary calling of a man exercising such trade or business, but the hiring of a servant once in the year does not come within the meaning of those words." Sandiman v. Breach, 7 B. & C. 96.
6 Bennett v. Brooks, 9 Allen, 118 (1864); George v. George, 47 N. H. 27 (1866), in which the subject is thoroughly examined. And see Weidman v. Marsh, 2 Am. Law Jour. 408 (1850); Whart. Dig. Wills, pi. 73.
§ 755. Yet if either party make the contract bond fide, and without knowledge that the other is exercising his ordinary calling in making it, he may avail himself of the contract, because he is not knowingly involved in the illegality; but the other party cannot enforce the contract, or plead its illegality in defence.8
§ 756. But a contract for the sale of goods will not be void under the statute, unless it be made legally complete on Sunday.9 If it be a mere bargaining, without a definite agreement with the bank in respect to the transmission of the check; as no express agreement to the contrary appeared.1
Protection of the public, and where it violates a statute law which is merely designed for the protection of the revenue. And it has been held, that where there was a mere breach of a revenue regulation, which was protected by a specific penalty, and there was no fraud upon the revenue, and no clause in the statute making the contract illegal, that it was valid, and only subjected the party to the payment of the penalty.1 But this distinction has not found favor, and seems now to be abrogated, and the true rule seems to be, as laid down by Baron Parke, that "notwithstanding some dicta apparently to the contrary, if the contract be rendered illegal, it can make no difference in point of law, whether the statute which has made it so has in view the protection of the revenue, or any other object.,, 2
1 Peate v. Dicken, 1 C. M. & R. 422; s. c. 5 Tyrw. 116. See also Scarfe v. Morgan, 4 M. & W. 270.
2 Smith v. Wilcox, 19 Barb. 581.
3 Bloom v. Richards, 2 Ohio St. 388.
4 Finn v. Donahue, 35 Conn. 216 (1868).
5 Benedict v. Bachelder, 24 Mich. 475 (1871).
6 Thomas v. Hunter, 29 Md. 406 (1868). And see Lea v. Hopkins, 7 Barr, 492.
7 Bumgardner v. Taylor, 28 Ala. 687 (1856).
8 Smith v. Wilcox, 19 Barb. 581; Bloxsome v. Williams, 3 B. & C. 232; s. c. 5 Dowl. & Ryl. 82; Fennell v. Ridler, 5 B. & C. 406; s. c. 8 Dowl. & Ryl. 204; Myers v. The State, 1 Conn. 502.
9 See Goss v. Whitney, 24 Vt. 187; Lovejoy v. Whipple, 18 Vt. 379. If A. on Sunday requests the use of B.'s horse, which B. does not then agree ment; or if it do not comply' with the requisitions of the statute of frauds, so as to be legally binding, - it will be valid. Thus, where a horse was bought by parol on Sunday, but was not delivered until Monday, it was held to be a valid sale, because the sale was not made binding on Sunday under the statute of frauds.1 Yet if the contract be virtually settled on Sunday, and all the terms agreed upon, it would be doubtful whether the mere deferring of the signature thereto until Monday would render it valid.2 And a guaranty for the fulfilment of a lease, executed and delivered on a Sunday, is void, although the lease to which it applies be not executed until a following week-day.3 The authorities also hold that contracts made on the Sabbath cannot be ratified and made binding afterwards,4 except perhaps where property delivered on that day is retained, and a partial payment or a new promise to pay is made on a week-day.5