Opinion
37040.
DECIDED FEBRUARY 12, 1958.
Action for real estate commissions. Muscogee Superior Court. Before Judge Thompson. November 26, 1957.
William G. Grant, Robert W. Spears, James C. Grizzard, for plaintiff in error.
E. B. Cartledge, Jr., John G. Cozart, contra.
If either party to a contract is engaged in his ordinary work or calling, and such contract is signed on the Sabbath, the contract is void and unenforceable. The law requires judicial officers to take cognizance of dates falling on the Sabbath.
DECIDED FEBRUARY 12, 1958.
W. A. Browne, hereinafter called the plaintiff, entered suit against J. A. Snipes, hereinafter called the defendant, seeking to recover real-estate commissions in the sum of $30,000. The petition alleged that the exclusive sales contract upon which the suit is based was prepared on a form printed for use by the plaintiff in pursuing his ordinary business or calling as a licensed real-estate broker; that the contract was entered into and executed on October 16, 1955; and that the description of the property was not complete.
The defendant filed general demurrers to the petition on 6 grounds. The court sustained the general demurrers and dismissed the petition. It is on this judgment that the plaintiff assigns error here.
The alleged contract is very lengthy and involved. We see no necessity in going into but one phase of the case. It clearly appears from the petition that the plaintiff was engaged in the business and work and ordinary calling of a licensed real-estate salesman, or broker. It appears also that the contract in question was executed, signed and delivered on October 16, 1955. October 16, 1955, fell on Sunday, a Sabbath day. Code § 26-6905 provides: "Any person who shall pursue his business or the work of his ordinary calling on the Lord's day, works of necessity or charity only excepted, shall be guilty of a misdemeanor." In this connection Code § 38-112 provides that courts may take judicial cognizance of matters of public knowledge. Matter of public knowledge include knowledge of dates which fall on the Sabbath. It is thus inescapable that the contract having been executed on the Sabbath day is void and without any force or effect whatsoever. In Williams v. Allison, 10 Ga. App. 840 ( 74 S.E. 442) this court said: "1. The courts will take judicial cognizance of the computation of time, and of what days of the month are Sundays. Dorough v. Equitable Mortgage Co., 118 Ga. 178 ( 45 S.E. 22). 2. A contract executed on Sunday, and which is connected with or relates to the business or work of the ordinary calling of one of the parties to the contract, and does not relate to work of necessity or charity, is invalid and can not be enforced. Penal Code (1910), § 416; Thompson v. Williams, 9 Ga. App. 367 ( 71 S.E. 678); McAuliffe v. Vaughan, 135 Ga. 852 ( 70 S.E. 322, 33 L.R.A. (NS) 255). 3. A contract made by the owner of real estate and personal property with a real-estate agent, placing the property in the hands of the agent to be sold, and fixing the commission to be paid to him and the terms of the sale, is a contract in connection with the ordinary calling or business of the real-estate agent, and, if executed on the Sabbath day, can not be enforced by the agent, although the contract may not have been made in the prosecution of the ordinary business or calling of the owner of the property. If the contract is executed in the prosecution of the ordinary business of either party thereto, and is executed on Sunday, it is invalid." See also Dorough v. Equitable Mortgage Co. 118 Ga. 178 ( 45 S.E. 22); McAuliffe v. Vaughan, 135 Ga. 852 ( 70 S.E. 322); Jones v. Belle Isle, 13 Ga. App. 437 ( 79 S.E. 357), and Cook v. Blain, 44 Ga. App. 691 ( 162 S.E. 658).
This contract having been void from its inception makes it unnecessary to discuss any other point embraced in the pleadings.
The court did not err in sustaining the general demurrers to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.