Merrill v. Downs , 41 N.H. 72 ( 1860 )

Nesmith, J.

The case finds that on the last Sunday in December, 1856, Simon E. Downs, one of the defendants, and a relative of the plaintiff, called upon him at his house, and proposed to sell to him a small tract of land, adjoining the plaintiff’s homestead. The parties then agreed to the bounds of the land, the price, and time of payment, but agreed that no deed should be made out, until Simon’s brother Aaron,- who owned the land with him as co-partner, should come down to Milton, and examine tbe land, and that be was not to come before tbe next ensuing summer. Tbis was tbe extent of tbe negotiation made by tbe parties on Sunday. There was no agreement, or memorandum of tbe contract, reduced to writing, nor signed by tbe parties to be charged, agreeably to tbe requisites of tbe statute of frauds. Tbe plaintiff paid no part of tbe consideration money. There was no contract completed, or consummated. There existed no more than an open parol proposition for a sale, contingent upon tbe future willingness of the plaintiff to pay tbe consideration, and tbe subsequent assent of tbe defendants to receive it, and upon tbe previous personal examination of tbe premises by Aaron, tbe co-tenant, and then, upon his assent to give tbe title. There were no contracting parties present and together on Sunday, competent to make and complete a binding contract. Simon bad no written or other legal authority to bind bis absent brother, nor did be propose to do so.

Tbe defendants held tbe land as partners. It is well settled that real estate, conveyed to and held by partners, and though purchased by them, as partnership funds, and for tbe use of tbe partnership, is to be considered in law as tbe several property of tbe individual partner, and liable to be levied on for their separate debts. Peck v. Fisher, 7 Cush. 317. Upon tbe dissolution of a co-partnership, or tbe decease of a partner, the interest of each partner in tbe real estate belonging to tbe partnership, descends to bis heirs at law, subject to the debts of the firm. Pratt v. Oliver, 3 McLean 27. Partners can have no legal seizin of land in their partnership capacity. Mussey v. Holt, 24 N. H. 257; Jarvis v. Brooks, 23 N. H. 136. Hence, one partner cannot bind tbe firm by a contract for tbe sale of their real estate, without special authority from bis co-partner, unless, in a case where the buying and selling of real estate is tbe object of tbe partnership. Lawrence v. Taylor, 5 Hill 107. Therefore, Aaron was not bound by the acts of Simon, to convey his interest in the land in question. The agreement, to be obligatory, must be mutual, binding both parties, or neither. The agreement is incomplete if either party can withhold assent to any of its important terms. Here, then, it appears that on the Sabbath there were no adequate consenting parties present, capable of making a valid contract. There was no existing mutuality in the proposed contract. There was nothing done upon which an action at law could be founded; or any agreement made, as it then stood, which, if made on a legal day, could be enforced, either at law or by any proceeding in equity. On Sunday, the mutual consent of all interested had not been obtained. It was in the power of either to recall their proposals. All the material requisites to a valid contract in relation to lands remained to be perfected upon some future day.

Accordingly, the plaintiff on his part, upon a subsequent legal day, advances the price of the land to the defendants, and then receives therefor, in return from them, some evidence of the existence of a contract about land. The principles involved in this case appear to be analogous to those settled in Stackpole v. Symonds, 23 N. H. 229. There, the defendant proposed to the plaintiff and his associates, on Sunday, to go on and perform a certain job of work on a railroad, and he would pay them thefefor when the work should be completed. On Monday, the plaintiff and his co-laborers took the subject under consideration, and concluded to go on and finish the job. In this case, the court considered the language of the defendant on Sunday as no more than a proposition; and as it was not accepted on that day,, there was, of course, no contract completed. If any thing remain to be done on some future day, the contract will not be void. It is not sufficient, to avoid a contract, that it grows out of a transaction commenced on Sunday. To render it void it must be closed or perfected on that day. Clough v. Davis, 9 N. H. 500; Addison v. Gay, 19 Vt. 358; Lovejoy v. Whipple, 18 Vt. 379; Ch. on Cont. 423; Smith v. Bean, 15 N. H. 577; Bloxsome v. Williams, 3 B. & Cr. 232; Williams v. Paul, 6 Bing. 653; Goss v. Whitney, 24 Vt. 317 ; Butler v. Lee, 11 Ala. 885; 8 U. S. Digest 337. In the summer of 1857 Aaron Downs went to Milton and inspected the land in question, and signifiéd his unwillingness, or refusal to convey it to the plaintiff; also refused to refund the consideration received by him and brother. The letters in the case show a special demand, by the plaintiff, of the conveyance, or the money advanced for the land. When money is paid on a contract which is executory on the part of him who receives the money, and he altogether fails to fulfil his part of the contract, the injured party has an election, either to bring an action on the contract, to recover damages for its non-performance, or to consider it as rescinded, and recover back the money paid, as had and received to his use. Luey v. Bundy, 9 N. H. 300; Lane v. Shackford, 5 N. H. 133; Ayer v. Hawkes, 11 N. H. 150; Griggs v. Austin, 2 Pick. 20; Carter v. Carter, 14 N. H. 424. Money paid on an agreement, void by statute of frauds, which the defendant cannot, or will not complete, may be recovered back. Ch. on Cont. 622. In case such, agreement be made for the sale of land, the plaintiff, before fie can recover, must show that he has tendered the whole purchase money and demanded a deed. Hudson v. Swift, 20 Johns. 241.

The case, Uhler v. Applegate, 26 Penn. 140, quoted by the plaintiff’s counsel, sustains the principles of this ease. In that case an agreement was made on Sunday, upon which, had it been made on a week day, no action could have been maintained. It depended entirely for its validity, upon an act to be performed afterward, viz., the payment of §>160. The payment was subsequently made on the understood terms. The court said that this constituted a perfect contract upon a valuable consideration, free from any objection arising from the previous conversation on Sunday. In delivering the opinion, Lewis, C. J., says that it is not the intention of tbe law that its regard for the Sabbath, should be made the means of perpetrating a fraud. It appears to us that neither the law or sound morality would place the parties in pari delicto. One of the defendants invades the domestic privacy of the plaintiff, on Sunday, becoming, in the sense of the statute law, the disturber of others, and then induces the plaintiff to place in the defendant’s hands the consideration for the land. The plaintiff, after submitting to a long delay, asks for a deed of the land, and is taunted, by the answer, that he can neither have the land or his money. The court will afford relief to the more innocent party, where equity requires it. Schemerhorn v. Talman, 4 Kern. 93; Tracy v. Talmadge, 4 Kern. 162. The letters which passed between the parties to a contract immediately before and after the transaction, may be so connected with, and relate to it, as to become part of the res gestee, and therefore admissible evidence. New-England Ins. Co. v. DeWolfe, 8 Pick. 56; Gaskill v. Skene, 14 Ad. & E., 68 E. C. L. 664.

Eor these reasons, we think, there should be

Judgment on the verdict.