Opinion
No. 31899.
December 9, 1935. Suggestion of Error Overruled January 13, 1936.
1. SUNDAY.
Plaintiff undertaking to allege in detail grounds relied on must set out whole case, and must not omit material part thereof, such as contention that Sunday statute invalidated contract (Code 1930, section 1131).
2. APPEAL AND ERROR.
That tenants bringing replevin for farm products seized under distress for rent failed to plead Sunday statute held not reversible error, where landlord made no objection to evidence that lease was executed on Sunday (Code 1930, sections 1131, 2208, 2209).
3. SUNDAY.
Whether lease, though dated on Monday, was executed on Sunday, held jury question under evidence (Code 1930, sections 1131, 2208, 2209).
4. SUNDAY.
Where all terms of contract are agreed upon on Sunday and contract is not to be deemed binding until reduced to writing and signed, which is subsequently done on secular day, contract is void in Mississippi, though valid in Tennessee (Code Miss. 1930, section 1131; Code Tenn. 1932, section 5253).
5. SUNDAY.
Where tenants of Mississippi farm brought replevin for produce seized under distress for rent which, under lease, was to consist of certain cotton to be delivered at landlord's residence in Tennessee, and contended that lease was Sunday contract, and it appeared that terms thereof were agreed on in Tennessee, Sunday statute of Tennessee, rather than that of Mississippi, held applicable (Code Miss. 1930, sections 1131, 2208, 2209; Code Tenn. 1932, section 5253).
APPEAL from the circuit court of Marshall county; HON. T.H. McELROY, Judge.
Dean Belk, of Holly Springs, for appellant.
As to the proof before the court that the contract was made on Sunday and the first of the three items to be considered by the court, we insist that there was no sufficient, positive proof before the court upon which the court could properly render a peremptory instruction in favor of the plaintiffs in replevin below, appellees here, on the grounds set forth in their motion, such as would meet the rules laid down by this court in the following and many other authorities:
Gulf S.I.R. Co. v. Prime, 118 Miss. 90; N.O. N.E.R. Co. v. Penton, 135 Miss. 571; N.O. N.E.R. Co. v. Martin, 140 Miss. 410.
Certainly the court was not warranted in sustaining the motion for a peremptory instruction, being required to take judicial notice that a particular day or particular days of a month did not fall on Sunday.
Morgan v. Burrow, 16 So. 432.
The legal presumption is that the lease was delivered and signed on the day stated.
Morgan v. Burrow, 16 So. 432.
In this case, there is a presumption controlling in the absence of direct proof to the contrary that the contract was signed on August 21, 1933, a secular day.
Assuming, only, however, for the purpose of this discussion that the facts as set forth in the motion for a peremptory instruction were true, nevertheless, under the Tennessee statute, "lex loci contractus" applies, as construed by the following authorities and would still be no Sunday contract.
Moseley v. Vanhooser, 6 Lea 286; Section 1723, Code of Tennessee; Baker Stratton v. Railroad Co., 10 Lea 304-308; McGee v. Jones, 27 Miss. 405.
The fact that preliminary negotiations in respect to a contract are entered into or that the terms thereof are practically agreed on or that some steps are taken toward its execution on Sunday will not operate to render the contract which is subsequently consummated on a secular day, void as a Sunday contract.
25 R.C.L., sec. 25; Butler v. Lee, 11 Ala. 885, 46 Am. Dec. 230; Tyler v. Wadlingham, 58 Conn. 375, 20 A. 355, 8 L.R.A. 657; Evansville v. Morris, 87 Ind. 269, 44 Am. Rep. 763; Schulze Baking Co. v. Goodson, 119 So. 354.
Smith Smith, of Holly Springs, for appellees.
In our opinion, we respectfully submit that both sections name exactly the same things; and that, therefore, the contract at issue in this law suit is unlawful in Tennessee and is unlawful in Mississippi, equally, and, therefore, void under the laws of either state.
Section 1131, Code of 1930; Section 73, Code of Tennessee.
However, if we should concede (which we do not for one moment do) that the lex loci contractus should be considered in resolving the issue before the court, we believe that this consideration must receive from the court rejection of the argument of appellant and his references under the Tennessee statute, because such a construction may not be enforced by the law of this state, where this litigation is pending, as the Tennessee law would then be contrary to positive statutory enactments and the public policy of the state of Mississippi where its enforcement is sought.
Parker v. Moore, 115 Fed. 799, C.C.A. 369; Hamilton v. Chicago, etc., R.R. Co., 124 N.W. 363; Carey v. Schmeltz, 221 Mo. 132, 119 S.W. 946; Castens Packing Co. v. So. Pac. Co., 58 Wn. 239, 108 P. 613; Connaday v. Atlantic Coast Line R.R. Co., 143 N.C. 439, 55 S.E. 836.
Comity will not be recognized to overthrow any express statute of the state where the agreement is sought to be enforced.
Boyer v. Knowlton, 97 N.E. 137.
The contract involved real estate located in the state of Mississippi, a lease thereof being in effect an alienation thereof for the time being, and, therefore, the contract for that reason also is construable under the laws of Mississippi, even if the statute of Tennessee conflicted with the statute of Mississippi, which we earnestly maintain it does not.
Thomas v. Kyle, 23 So. 12, 39 Fla. 582, 63 Am. St. Rep. 193; Connor v. Elliott, 85 So. 164, 79 Fla. 513, 41 Sup. Ct., S.C.T. 148, 254 U.S. 265, 6 L.Ed. 465; Shacklett v. Poke, 51 Miss. 378; Miller v. Lynch, 38 Miss. 344; Block v. McMurry, 56 Miss. 219.
The general rule on which the invalidity of contracts made as a result of acts violating the statute does not depend upon an expressed declaration of the statute declaring Sunday contracts to be void. But it is only necessary to show that the parties in entering into such contracts are undertaking generally, or in entering into the particular contract or agreement involved, on Sunday, performed acts which are within the prohibition of penal or criminal statutes regulating the observance of the day, in order to avoid such contracts or agreements, for the same reasons and to the same extent as other contracts generally whose making is tainted with illegality.
Grapico Bottling Co. v. Ennis, 106 So. 97, 140 Miss. 502, 44 A.L.R. 124; Block v. McMurry, 56 Miss. 127; Strouse v. Langtot, 27 So. 606.
The execution of the writing on a secular day does not give validity to the agreement which the evidence shows was reached on Sunday.
Hill v. Hite, 85 Fed. 268, 29 C.C.A. 549, 79 Fed. 826; Gordon v. Levine, 83 N.E. 861, 197 Mass. 263, 125 Am. St. Rep. 361, 15 L.R.A. (N.S.) 243; Foster v. Wooten, 7 So. 501, 67 Miss. 540; Kountz v. Price, 40 Miss. 341.
Appellees, Mrs. Arlena and Loyse Frost, brought this action of replevin in the circuit court of Marshall county, against appellant to recover certain farm products, described in the declaration, which had been seized under a distress for rent theretofore sued out by appellant against appellees. At the conclusion of the evidence, the court, on request of appellees, directed a verdict and judgment in their favor upon the ground that the contract involved was a Sunday contract. From that judgment appellant prosecutes this appeal.
The propriety, therefore, of the directed verdict is the question. Appellant resided in Tennessee, but owned a farm in Marshall county in this state. He rented the farm to appellees for the year 1934, for which they agreed to pay a rental of six bales of middling cotton, first picking, weighing five hundred pounds each, ginned and wrapped. The contract was in writing, dated August 21, 1933; its terms were agreed on in the state of Tennessee, and it provided that the six bales of cotton should be delivered to appellant in that state at Collierville. Appellees failed to deliver the six bales of cotton as provided in the contract. Appellant sued out distress for the rent, as provided in the Code chapter on landlord and tenant, under which certain agricultural products raised by appellees on the leased premises were seized. Appellees, proceeding under sections 2208 and 2209 of the chapter on landlord and tenant, Code of 1930, filed their declaration against appellant in the form provided by the latter section. Attached to the declaration and referred to as a part of it was the written contract of lease, and an elaborate statement setting out the facts upon which appellees relied as ground for recovery of the property seized under distress. If true, it showed that appellees were not indebted to appellant in any sum for rent, but, on the contrary, that appellant was indebted to them.
There was no allegation, either in the declaration or in the grounds relied on for recovery, made a part of the declaration, that the lease contract was made on Sunday. The Sundays in the month of August, 1933, were the 6th, the 13th, the 20th, and the 27th. As above stated, the contract was dated the 21st.
Appellee Loyse Frost in his testimony stated that the terms of the contract were agreed on "the first of August, 1933, at Collierville." Appellant testified that the contract was verbally agreed upon (quoting his language), "I think it was on Sunday afternoon they came over but I don't know for sure." He was asked if the written contract they afterwards executed was made on Sunday afternoon, to which he replied: "I don't remember exactly whether it was Sunday afternoon or not but I think it was."
Appellant made no objection to this testimony upon the ground that he had been given no notice by appellees' pleading that they relied on the Sunday statute to void the contract. In Page v. Sadler, 134 Miss. 459, 99 So. 8, it was held that the defense that a contract was illegal and unenforceable because made on Sunday was an affirmative defense and could not be proved under the general issue without notice. We do not mean to hold that appellees were required to set out in their declaration that they relied on the Sunday statute as a ground for recovery, but we do hold that where, as in this case, the plaintiff in his declaration undertakes to set out in detail the grounds on which he relies for recovery, he must set out his whole case. In other words, if he undertakes to give his adversary notice of the case he has, he must not leave out a material part of it; he must put him on notice of his whole case. Appellees' failure in this respect, however, is not reversible error because appellant failed to take advantage of it by objecting to the evidence. What is said is for the guidance of the court on another trial.
Section 1131, Code of 1930, makes it a criminal offense for any person, on Sunday, to labor at his own or any other trade, calling, or business, or employ his servant so to do, except in household affairs of daily necessity, or other work of necessity or charity, and certain other exceptions not necessary to mention.
The Tennessee Sunday statute, section 5253, Code of Tennessee 1932, is in this language: "If any person shall be guilty of exercising any of the common vocations of life, or of causing or permitting the same to be done by his children or servants, acts of real necessity or charity excepted, on Sunday, he shall, on due conviction thereof before any justice of the peace of the county, forfeit and pay ten dollars, one-half to the person who will sue for the same, the other half for the use of the county."
The evidence was somewhat indefinite as to whether the terms of the contract were agreed upon on Sunday, although the preponderance of it was to that effect. We are of opinion, therefore, that it was a question for the jury under proper instructions by the court as to whether it was a Sunday contract or not.
So far as this case is concerned, the applicable provisions of the Mississippi statute and the Tennessee statute are substantially the same. There appears, however, to be a difference in the construction of the two statutes by the courts of the respective states. The evidence tended to show that if all the terms of the contract were in fact agreed upon on Sunday, it was not to be considered as binding between the parties until it was reduced to writing and signed, and that this was done several days afterwards on a secular day. Such a contract is void under the construction put upon our Sunday statute by the Supreme Court, Kountz v. Price, 40 Miss. 341, while it is valid under the construction put on the Tennessee statute by the Supreme Court of that state, Moseley v. Vanhooser, 6 Lea (74 Tenn.) 286, 40 Am. Rep. 37; Baker Stratton v. Louisville N.R. Co., 10 Lea (78 Tenn.) 304. In the Moseley case the court said: "If a contract is to be held void because made on Sunday, it certainly should be technically complete on that day." In that case all the terms of the contract were agreed upon on Sunday, except that the purchaser had the right to examine the oxen, which were being sold, the next day. In the Baker Stratton case the court used this language: "Lastly, the court was asked to say that a contract entered into Sunday, but not to be executed until Monday, was not illegal. It seems to have been so held by this court, [Moseley v. Vanhooser], 6 Lea [(Tenn.) 286], 288, [40 Am. Rep. 37.]"
Which rule applies, that of Mississippi or that of Tennessee? We think, under the authority of McKee v. Jones, 67 Miss. 405, 7 So. 348, that the latter does. It was held in that case that a seller of personal property, when sued in this state upon his warranty, could not defend upon the ground that the sale was made on Sunday, where the sale occurred in Louisiana; there being no law in that state prohibiting the enforcement of Sunday contracts. In other words, in such a case, the courts of this state would apply and enforce the law of Louisiana and not of this state.
Reversed and remanded.