A. Goletti, Inc. v. Andrew Gray Co. , 125 Miss. 646 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a suit by the appellant to recover the value of a quantity of lumber delivered to the appellee, who accepted and converted it to its own use. The pleadings show the action of the plaintiff to be one of assumpsit, on an implied promise to pay, in quantum valebat. The defendant below pleaded a denial of liability on the ground that the contract of sale of the lumber was executed on Sunday, and for that reason was void. To this plea of a Sunday contract the plaintiff replied that the lumber was delivered to and accepted by the appellee on a secular day, converted by the appellee to its own use, and that, by snch acceptance and conversion on a day other than Sunday, appellee then and there assumed and obligated itself to pay to plaintiff the reasonable value of the lumber. A demurrer to this replication was sustained by the court, the suit dismissed, from which judgment this appeal is prosecuted.

The question presented for our decision is whether or not the fact that the written contract between the parties was wholly executed on Sunday, but the lumber was delivered, accepted, and converted subsequently on a secular day, will preclude a recovery by the seller in an action of assumpsit in quantum valet at.

The written contract between the parties executed on Sundáy was void, and if the recovery depended upon the enforcement of this contract the plaintiff must fail in his action. But this is not a suit upon the written contract executed on Sunday; it is an action of assunnpsit upon the implied promise of the appellee to pay for the lumber when he accepted it and converted it to his use upon a subsequent secular day.

No suit could be maintained upon the invalid Sunday contract, because it is, in law, no contract, but the implied obligation to pay in this case was assumed on a secular day, and this obligation is disconnected from the Sunday contract, and is enforceable to the extent of a recovery for the reasonable value of the property accepted and converted by the appellee.

The view we announce is not in conflict with any of the authorities for our state. The cases cited by counsel for the appellee as sustaining his position are easy of differentiation upon a careful perusal of them. It will be seen that some of the cases correctly hold that no recovery can be had upon a note executed on Sunday. Others hold that a suit is not maintainable on .contracts made on Sunday where the property is delivered on that day or where the right to recover depends upon the void Sunday contract. Woodson v. Hopkins, 85 Miss. 171, 37 So. 1000, 37 So. 298, 70 L. R. A. 645, 107 Am. St. Rep. 275, is not in point;

The case of Strouse et al. v. Lanctot, 27 So. 606, is especially cited by appellee as being in point and controlling in his favor here. We thing this case comes nearer sustaining the appellee than any other that we have been able to find, but, in our opinion, it is* not in point, for the reason that the suit there' was based wholly upon the Sunday contract, and is different from the instant case in that here the action is not founded upon the Sunday contract, but is upon implied assumpsit on a secular day, in quantum valebat. There was no consummation by delivery on Sunday.

Text-book authority, as well as the decisions of other jurisdictions, abundantly support the view we announce above. 6 R. C. L. 821; 25 R. C. L. 1433. The rule is that no..recovery can be had upon a void Sunday contract nor upon any obligation based upon, or growing out of, and dependent upon, a Sunday contract; but this principle has no application here, for the reason that the Sunday contract is independent of and disconnected from the implied assumption consummated by delivery and conversion-on ' a secular day.

The rule announced in this case appears reasonable and just. It is not opposed to good morals or proper observance of the Sabbath. A contrary holding would furnish a safe harbor against the collection of honest debts for property accepted and converted by the debtor on secular days; he being a party to the Sunday contract which he invokes as a defense. No such evil purpose or unholy result was intended by the law.

The judgment of the lower court is reversed, and tile case remanded.

Reversed and remanded.