Markle v. Scott

2 Wilson 593

• Court: Court of Appeals of Texas
• Decided: May 9, 1885
• Docket: No. 3406
• Status: Published

Opinion

Opinion by

Willson, J.

§ 674. Contract; made on Sunday; when valid and when not valid. A contract made on Sunday in relation to the commencement of an attachment suit is.not invalid because made on that day. The Sunday laws of this state prohibit certain labor on that day, and prohibit gaming, horse-racing, and the’ sale of goods, etc., on that day. [P. C. arts. 183, 185, 186.] They also require that public schools shall be closed on that day. [R. S. art. 3712.] And it is also provided that no suit shall be brought on that day, except an attachment suit. [R. S. art. 191.] These are the only statutory restrictions relating to Sunday. A contract made in violation of any of these statutes would be illegal and incapable of enforcement. But we know of no law which makes a contract illegal and void, or even voidable, merely because made on Sunday, when such contract is in regard to a,matter not. made unlawful by statute. At common law, as to contracts, no distinction is made between Sunday and any other day. [7 Wait’s Act. & Def. 114; 2 Parsons on Con. (7th ed.) bottom p. 892, note 2.]

May 9, 1885.

§ 675. Illegality in contract must he specially pleaded. No illegality in a contract which has not been pleaded can be considered. It is well settled that illegality in a contract, to be noticed, must be specially pleaded; and where, as in this case, the j>etition shows a valid contract, the court, in the absence of a special plea, cannot inquire into the legality of such contract. [W. & W. Con. Rep. § 1331; 7 Wait’s Act. & Def. 70.]

Affirmed.