Smith v. Case

2 Or. 190

Opinion

Prim, J.

Section 653 of the Code provides “ that if any person shall do any secular business or labor, other than works of necessity or mercy, on the first day of the week, commonly called Sunday or the Lord’s day, such person, upon conviction thereof, shall be punished by fine, etc.” ^The note set out in the complaint being executed and delivered on Sunday, in violation of this statutory provision, is illegal and void, and therefore cannot be enforced in the courts. The contract; being void, the defendant could acquire no right of property ! in the money obtained under it; and the express promise, subsequently made, as alleged, by him, we think is sufficient' to render Mm liable in assumpsit for the money had and received of plaintiff and for his use and benefit. It is urged that there was no consideration to support this promise, but we think the retention of this money belonging to plaintiff, is a sufficient consideration to support it. (Adams v. Gray, 19 Ver., 358; Williams v. Paul, 6 Bing., 653 ; Dodson v. Harris, 10 Ala., 566.)

The court below having sustained the demurrer, the judgment is reversed, and case remanded with leave to defendant to answer.