Horton v. Buffinton

105 Mass. 399

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Ames, J.

It is well settled that contracts made upon the Lord’s day are illegal and cannot be enforced. It is equally well settled, however, that after such a contract has been executed and carried into full effect, the law will not aid a party, who has paid money or delivered property in pursuance of' its terms, to reclaim what he has so parted with. The policy of the law is to leave the parties in all such cases without remedy against each other. The defence of illegality is allowed, “ not as a protection to the defendant, but as a disability in the plaintiff.” Myers v. Meinrath, 101 Mass. 366.

The case finds that the wagon in dispute, although it may be true that it was sold by Jarvis B. Horton on the Lord’s day, was delivered to his brother, Charles A. Horton, was subsequently sold by the latter to the plaintiff, and was in the actual possession and use of the plaintiff at the time of the attachment by the defendant. In the absence of all evidence to the contrary, it may be assumed that the consideration of the first sale was paid. Under such circumstances it is difficult to see how the original vendor, Jarvis B. Horton, could have reclaimed it on the ground of any illegality in the contract of sale. The law would not aid him to undo what he had done. He could only impeach the sale by showing the illegality of his own act, which in the case of an executed and completed contract he certainly cannot do. This disability on his part to reclaim it would avail the party holding it, as a sufficient title. Myers v. Meinrath, ubi supra. It had ceased to be the original vendor’s property, or liable for his debts, and therefore the attachment under which the defendant seeks to justify was wrongful. King v. Green, 6 Allen, 139. Claridge v. Hoare, 14. Ves. 59. Way v. Foster, 1 Allen, 408. Gregg v. Wyman, 4 Cush. 322. Sampson v. Shaw, 101 Mass. 145.

Exceptions overruled.