5 early English statute, only business within a person's "ordinary calling" is forbidden a contract, or sale which is outside of such calling is not forbidden. So in some States only public sales and publicly offering to sell are forbidden. And still other statutes are directed merely against labor." So far, then, as the making of a particular contract on Sunday is within the local statutory prohibition it is unlawful, and moreover a contract made on a secular day to do an act on Sunday which the law forbids to be done on that day is equally unlawful, and no recovery can be had for such performance. § 1701. Preliminary negotiations on Sunday do not invalidate a contract. The fact that the parties discussed on Sunday the terms of a proposed bargain will not invalidate it if afterwards entered into on a secular day, and what took place on Sunday may be upon the agent. Kryzminski v. Callahan, 213 Mass. 207, 100 N. E. 335, 43 L. R. A. (N. S.) 140. But in McKee v. Verner, 239 Pa. 69, 86 Atl. 646, 44 L. R. A. (N. S.) 727, the court refused to open a judgment entered under a warrant of attorney given on Sunday. Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 3 B. & C. 232; Smith v. Sparrow, 4 Bing. 84; Scarfe v. Morgan, 4 M. & W. 270; Swann v. Swann (C. C.), 21 Fed. 299; Sanders v. Johnson, 29 Ga. 526; Hazard v. Day, 14 Allen, 487, 92 Am. Dec. 790; Allen v. Gardiner, 7 R. I. 22; Hellams v. Abercrombie, 15 S. C. 110, 40 Am. Rep. 684; Mills v. Williams, 16 S. C. 593; Amis v. Kyle, 2 Yerg. 31, 24 Am. Sec. 463. "Labor or work of their stitutional in State v. Weiss, 97 Minn. 125, 105 N. W. 1127. In Reynolds v. Stevenson, 4 Ind. 619, this was held broad enough to include sales. See also Shaw v. Williams, 87 Ind. 158, 44 Am. Rep. 756. But though in a broad sense of the words "labor or work," a sale or contract to sell may be included, it seems that a statute making illegal what was not illegal at common law should be strictly construed. Accordingly sales and contracts to sell generally have been held not within such a statute. Richmond v. Moore, 107 Ill. 429, 47 Am. Rep. 445; Eden v. People, 161 III. 296, 300, 43 N. E. 1108, 32 L. R. A. 659, 52 Am. St. Rep. 365; Birks v. French, 21 Kans. 238; Roberts v. Barnes, 127 Mo. 405, 30 S. W. 113, 48 Am. St. Rep. 640; Horacek v. Keebler, 5 Neb. 355; Bloom v. Richards, 2 Ohio St. 387. 8 Carson v. Calhoun, 101 Me. 456, 64 Atl. 838; Barney v. Spangler, 131 Mo. App. 58, 109 S. W. 855; Knight v. Press Co., 227 Pa. 185, 75 Atl. 1083; and see infra, § 1710. shown as explaining the meaning of what took place later.9 Within this principle, an offer made on Sunday, but accepted on a secular day, creates a valid contract. 10 So a formal instrument as a bond or deed, 11 or negotiable instrument, 12 though signed on Sunday is valid if delivered on a secular day, since until delivery the transaction is incomplete. § 1702. Ownership may be transferred by agreement on Sunday. If it be assumed that a given conveyance, contract or sale made on Sunday is forbidden by the local law, it then becomes important to determine what is the effect, if any, of the transaction. A contract thus forbidden, which is wholly executory on both sides, clearly can be enforced by neither party. 13 But McKinnis v. Estes, 81 Ia. 749, 46 N. W. 987; Tuckerman v. Hinkley, 9 Allen, 452; Miles v. Janvrin, 200 Mass. 514, 518, 86 N. E. 785; Silver v. Graves, 210 Mass. 26, 31, 95 N. E. 948; Wooliver v. Boylston Ins. Co., 104 Mich. 132, 62 N. W. 149; Provenchee v. Piper, 68 N. H. 31, 36 Atl. 552; Burr v. Nivison, 75 N. J. Eq. 241, 72 Atl. 72, 138 Am. St. Rep. 554, 20 Ann. Cas. 35; Berry v. O'Neill (N. J. L.), 104 Atl. 25; Curtin v. People's Nat. Gas Co., 233 Pa. 397, 82 Atl. 503. But where an agreement provided that it should not be valid until ratified by a third person, and this ratification was given on Sunday, there was no valid contract. County Engineering Co. v. West, 88 N. J. Eq. 109, 102 Atl. 668. 1o Dickinson v. Richmond, 97 Mass. 45; Stackpole v. Symonds, 23 N. H. 229; McDonald v. Fernald, 68 N. H. 171. But see contra International Text Book Co. v. Ohl, 150 Mich. 131, 111 N. W. 768, 13 L. R. A. (N. S.) 1157, 121 Am. St. Rep. 612. 11 Love v. Wells, 25 Ind. 503, 87 Am. Dec. 375; Hall v. Parker, 37 Mich. 590, 26 Am. Rep. 540; Schwab v. Rigby, 38 Minn. 395, 38 N. W. 101; Duggan v. Champlin, 75 Miss. 441, 23 So. 179; Beitenman's Appeal, 55 Pa. 183; Farwell v. Webster, 71 Wis. 485, 37 N. W. 437; O'Day v. Meyers, 147 Wis. 549, 556, 133 N. W. 605. See also the application of the same rule to contracts, apparently informal, in Gibbs & Sterrett Mfg. Co. v. Brucker, 111 U. S. 597, 602, 28 L. Ed. 534, 4 S. Ct. 572; Harris v. Morse, 49 Me. 432, 77 Am. Dec. 269. On principle the question in the case of such contracts depends (1) upon whether a contract was made on Sunday, though the writing was not delivered (see supra, § 28), and (2) if so, was this contract subsequently adopted on a secular day. 12 Flanagan v. Meyer, 41 Ala. 132; Young v. Dublin Fertilizer Works, 16 Ga. App. 651; King v. Fleming, 72 Ill. 21, 22 Am. Rep. 131; Conrad v. Kinzie, 105 Ind. 281, 4 N. E. 863; Hill v. Dunham, 7 Gray, 543; Barger v. Farnham, 130 Mich. 487, 90 N. W. 281; Clough v. Davis, 9 N. H. 500; Lovejoy v. Whipple, 18 Vt. 379, 46 Am. Dec. 157; O'Day v. Meyers, 147 Wis. 549, 133 N. W. 605. 13 County Engineering Co. v. West, 88 N. J. Eq. 109, 102 Atl. 668; Chestnut v. Harbaugh, 78 Pa. St. 473, and cases in this section passim. it may be supposed that the bargain has been executed on one side or the other, at least in part. By far the most common case is where goods have been sold and the property in them passed, so far as it is possible for the parties to bring about that result on Sunday. If the effect of the transaction is completely nullified by its illegality, no property can pass and, consequently, the seller, even though the goods have been delivered, may later sue in trover or replevin to recover them. This result has been reached in some States. 14 But the criticisms which have been previously made upon the theory that illegal contracts are wholly void 15 apply here with peculiar force. If it were true that such a sale was absolutely void, a bona fide purchaser from one who bought on Sunday would get no title-a result much to be deprecated. 16 In fact the law seems to recognize that except as between the parties themselves the transaction is effectual. 17 § 1703. Effect of transfer of ownership. A sale of chattels on Sunday is followed by the same consequences as if entered into upon a secular day except that all remedy is denied to either of the wrongdoers. 18 Accordingly 14 Dodson v. Harris, 10 Ala. 569; Ladd v. Rogers, 11 Allen, 209 (practically overruled on this point by Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368); Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355, 7 N. W. 906, 40 Am. Rep. 476; Adams v. Gay, 19 Vt. 358. In most of these decisions the court seems not so much to hold the transaction void as voidable on return of the consideration. 15 See supra, § 1630. 16 Sunday laws cannot be successfully invoked against such a purchaser. Mann v. United Motor Boston Co., 226 Mass. 495, 116 N. E. 239. 17 Thus one who claims ownership of goods bought on Sunday by the defendant must establish a title superior to that of him of whom the defendant bought. Moore v. Kendall, 2 Pinn. 99, 52 Am. Dec. 145. 18 Mann v. United Motor Boston Co., 226 Mass. 495, 116 N. E. 239. This was well explained in Smith v. Bean, 15 N. H. 577, 578, Parker, C. J., saying: "It is generally said of such an illegal contract that it is void. Drury v. Defontaine, 1 Taunt. 131; Allen v. Deming, 14 N. H. 133, 137, 138, 40 Am. Dec. 179, and cases there cited; Lewis v. Welch, 14 N. H. 294, 298. If this were so, and the contract, in the broad sense of the term, were void, no property would pass by it; the vendor might reclaim the property at will, and being his property it would be subject to attachment and levy by his creditors in the same manner as if the attempt to sell had never been made. But this is not what is intended by such phraseology. The transaction being illegal, the law leaves the parties to suffer the consequences of their illegal acts. The a buyer becomes the owner of the goods sold and delivered to him on Sunday and may retain them, though the consequence of so holding 189 is to permit him to obtain the benefit of the transaction without liability for the price; 19 since no action for the price,20.or for the value of the goods, 21 can be maintained. Nor can a payment made on Sunday be recovered. 22 contract is void, so far as it is attempted to be made the foundation of legal proceedings. The law will not interfere to assist the vendor to recover the price. The contract is void for any such purpose. It will not sustain an action by the vendee upon any warranty or fraud in the sale. It is void in that respect. The principle shows that the law will not aid the vendor to recover the possession of the property if he have parted with it. The vendee has the possession, as of his own property, by the assent of the vendor; and the law leaves the parties where it finds them. If the vendor should attempt to retake the property without process, the law, finding that the vendee had a possession which could not be controverted, would give a remedy for the violation of that possession. When then it is said that the contract is void, the language is used with reference to the question whether there is any legal remedy upon it. See Fennell v. Ridler, 5 B. & C. 406, opinion of Bayley, J." 187 Bertram v. Morgan, 173 Ky. 655, 191 S. W. 317, L. R. A. 1917 D. 445; Rickards v. Rickards, 98 Md. 136, 56 Atl. 397, 63 L. R. A. 724, 103 Am. St. 393, and see cases in the following notes. 19 Kinney v. McDermot, 55 Iowa, 674, 39 Am. Rep. 191; Kelley v. Cosgrove, 83 Iowa, 229; Myers v. Meinrath, 101 Mass. 366, 3 Am. Rep. 368; Smith v. Bean, 15 N. H. 577; Foster v. Wooten, 67 Miss. 540, 7 So. 501; Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808. In Maine this rule was altered by statute in 1880, which enacted that one who receives a valuable consideration for a contract made on Sunday shall not defend against it on that ground until he restores the consideration. See Bridges v. Bridges, 93 Me. 557, 45 Atl. 827. Such a statute sets up a different rule from that applicable to illegal bargains generally. Under it executory contracts cannot be enforced, but partially executed ones become enforceable unless rescinded by the restoration of the consideration received. Such a rule may be appropriate in a community where a sale on Sunday is not regarded as so wrongful in its nature as to justify the application of the ordinary rule that parties to illegal bargains are left by the law without remedy, whatever their position may be. A result somewhat similar to that reached in Maine by statute seems to have been reached in some other States without the aid of a statute like the Maine act of 1880. Dodson v. Harris, 10 Ala. 566; Tucker v. Mowrey, 12 Mich. 378; Adams v. Gay, 19 Vt. 358. 20 Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Pike v. King, 16 Iowa, 49; Thompson v. Williams, 58 N. H. 248; Foreman v. Ahl, 55 Pa. St. 325. 21 Ladd v. Rogers, 11 Allen, 209; Troewert v. Decker, 51 Wis. 46, 8 N. W. 26, 37 Am. Rep. 808. The Maine statute referred to supra, n. 19 changes this result, and the decisions which are cited in the same note as reaching a result like that produced by the statute are also opposed. 22 Calkins v. Seabury-Calkins, etc., § 1704. Importance of delivery. If the property in the goods has passed but possession has not been delivered, it seems that the buyer would be unable to enforce any right to the property, for in order to show the seller's obligation to deliver the buyer would be obliged to rely upon the illegal bargain. If, however, the seller delivered the property on Sunday and afterward retook it, the buyer could sue for the wrong, for he would then be relying on a violation of a right to the continuance of his possession. 23 Where a seller has partially performed the bargain, as by delivering part of the goods, the same principle seems applicable. The property in the goods delivered and the possession are in the buyer, but he is under no obligation to pay for what he has received, nor can he enforce any obligation of the seller to deliver the remainder. 24 Creditors of one who has sold and delivered property on Sunday cannot seize it as his, either in the hands of the buyer 25 or of a purchaser from the buyer. 26 If the price were paid in whole or in part, but the property not delivered, the same principles would have to be applied as control a case where the seller has performed and the buyer has not.27 § 1705. Sales of land and choses in action. It seems that a deed of conveyance made on Sunday transfers title, but if possession has not been delivered to the grantee, he cannot have the aid of the court and his theoretical title is worthless; 28 but if possession is delivered, the grantee's right Min. Co., 5 S. Dak. 299, 58 N. W. 797; 23 Kinney v. McDermot, 55 Iowa, 674, N. W. 656, 39 Am. Rep. 191. In this case the defendant had, in the absence of the plaintiff, on a week day, returned to the plaintiff's stable a horse which he had received on a Sunday in exchange for a horse of his own. This latter horse the defendant took from the plaintiff's stable when he returned the horse he had received. The plaintiff was allowed to maintain replevin for the horse taken, leaving the plaintiff in possession of both horses. See also Thompson v. Williams, 58 N. 24 See Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699; Stewart v. Thayer, 168 Mass. 519, 47 N. E. 420, 60 Am. St. Rep. 407; Foreman v. Ahl. 55 Pa. St. 325. 25 Blass v. Anderson, 57 Ark. 483, 22 S. W. 94; Greene v. Godfrey, 44 Me. 25; Foster v. Wooten, 67 Miss. 540, 7 So. 501; Chestnut v. Harbaugh, 78 Pa. St. 473. 26 Horton v. Buffinton, 105 Mass. 399. 27 See Tucker v. West, 29 Ark. 386. » See Williams v. Armstrong, 130 |