Winchell v. Carey , 115 Mass. 560 ( 1874 )

Gray, C. J.

If the plaintiff was induced to make the contract of sale of her property by the false representation of Carey on a previous day that he was a partner with Kingsley, her right to avoid the contract would be wholly independent of the question whether the sale and delivery were made on the Lord’s day, the property would remain hers, and a subsequent demand by her of payment, and promise of Carey to pay for the property, would amount to a sale from her to him, and support an action against him; and by the Gen. Sts. c. 183, § 5, he may be found liable, although Kingsley is not. Upon such a state of facts, the action would not be in any degree founded upon a contract executed on the Lord’s day, or upon any rights growing out of it, or any deceit then practised, nor in any way seek to relieve the plaintiff from the consequences of her own illegal contract; but, treating that contract as never having been her contract at all, by reason of the fraud practised on her upon a previous day, would rest wholly upon her previous right of property and the subsequent lawful sale, and would not therefore be affected by the Lord’s day act. Stebbins v. Peck, 8 Gray, 553. Hall v. Corcoran, 107 Mass. 251. Cranson v. Goss, 107 Mass. 439. The learned judge who presided at the trial having declined to instruct the jury to this effect, the Exceptions are sustained.