YAh tiu '.il:':-' V. IRISH.
13
VAN
fJ.
IRISH.
(Uircuit Court, D. MinneBota.
January, 1882.)
1.
CoNT'- \CT :MADB ON SUNDAy-AFFIRMANCB ON A. WEEK DAY.
Aitirmance on a week day of a contract of bargain and sale entered into on Sunuay, and void for that reason, makes valid.
The plaintiff and defendant, on May 8, 1880, entered into a. contract for the sale and delivery of cattle, and $100 was paid the defendant on the contract. Subsequently this contract was rescinded, and another one entered into, varying somewhat in its terms, and the $100 retained by dE:Jfendant as part performance. The defendant claims this latter contract was made on Sunday and is void. The to perplaintiff brings this action to recover damages for a form a contract alleged to have been made on July 6th, a week day, which is substantially the contract claimed by defendant to have been made on Sunday. The defendant denies that any other contract was made except the one on Sunday. The case was tried by a for the plaintiff. A motion for a new trial jury, and verdict made by the defendant. W. P. Warner, for plaintiff. Lamprey tt Jame8, for defendant. NELSON, D. J. Two vital questions were submitted for the deter. mination of the jury: (1) Was the contract, for breach of which damages are claimed, entered '11to on Sunday? (2) If the contract was entered into on Sunday, and void by the laws of Minnesota, was it afterwards reaffirmed on a week day?
The court stated to the jury "that by the laws of Minnesota contracts of a secular character, and which are not works of necessity and charity, if finally consummated on Sunday, are void, and no action can be maintained, either on the contract or for the recovery of whatever may have been done under the contract;" also, "that <:lontracts entered into on Sunday could be reaffirmed afterwards." The case was fairly put to the jury, and the two controlling' issues left for them to pass upon. The counsel for the defendant presented several instructions and requested the court to embrace them in its charge to the jury. They were all, with two exceptions, given in the language of counsel. r£he language of the other two was changed so as to permit the jury
14
·PEDERA.L REPORTER.
to consider and determine whether the evidence showed a reaffirmance on a week-day of. the 'contract, in they should find tbe agreement was first entered into on Sunday. The court also in· structed the jury that the delivery of the cattle was evidence to be con· sidered by them tending to show reaffirmance,. as claimed by the plaintiff. Counsel in his brief states that defenda.nt ,testified that the cattle were delivered under no contract. He is mistaken. The defendant testified that he delivered the cattle under a contract made Sunday, July 4th. . The Vermont supreme court and the later anthoritie3 sustain the view taken in respect of the reaffirmance of Sunday contracts, in order, as said by Judge Redfield, to secure parties from fraud and over· reachir;lg practiced on Sunday by those who know their contracts are void and caimot be enforced. Adams v. G(iy, 19'Vt. 358; Harrison v. Iowa, 16. In this case the evidence showed that the cattle delivered by the defendant wa.s inferior,' and not up to the average of the herd he had to deliver. Ifth,e jury had determined the contract was completed and final on Sunday, 'and there had been no subsequent legal reaffirmance, the ia.w would leave the plaintiff to suffer from his own wrong, and would not aid him; but if the jury came to the conclusion from the evidence that the contract had been reaffirmed on a subsequent week day, it .valid from the date of the reaffirmance,' and plaintiff was entitled.' to tecbverdarnages for a breach. His; success in such case does not depend on his own violation of law. The jury' sustained the latter view of the case. Durant v. Rhener, 26 Minn. 362, does not touch one vital point, upon which this case turned, provided the jury came to the conclusion that the contract was affirmed on a week day. In the opinion of the supreme court in that case the conclusion of the referee did not agree with his finding of facts, and the facts as he found them showed in its opinion the ,agreement was entered into on Sunday, and was so ,considered by both parties. There wa.s no evidence in that case tending, to show a reaffirmance of the contract by the parties on a subsequent day. The evidence clearly,established "'the agreement for the formation of a partnership, then and there," on Sunday. The evidence here tended to show a reaffirmance, and justified the verdict of the jury. Motion denied.
SEOOB
v.
TOLEDO"PlllORtA & W.6.B8AW B. CO.
SEOOB and others ". TOLEDO, PEORU (Oircuit Oourt, No V.illinois.
WARSA.W
n. CO. and
otherf).
January 9,1882.)
A passenger, on a train tb,at had approached a station and was still moving , slowly, stood on the lower step of a car, in the act of stepping to the platform of the station, when, in consequonce of the car being moved forward with a jerk, he was thrown upon the platform and injured. Held, that he was guilty of contributory negligence in atte!Upting to alight from the train while it was in motion.
On the Intervening Petition of John Rawls. John Lyle King and Sandera tt McKinney, for petitioners. John M. Jewett and Tenny, Flower tt Cratty, for defendants. DRUMMOND, C. J. The property of the railroad was sold under a decree of the court. Certain funds were paid into court, and u,pon the reorganization oUhe comp\tt;lY by the purchasers under the sale purpose of meeting all claims which a.bond was filed in court for was. in the might be sustained by the Cl;>Urtwbile the sion of, and operated by, the receiver under its .This is a petition asking compensation for an injury which the petitioner sustained inconsequence of a fall while attempting to get off the train when it of March, 1878, the was operated by the receiver. On ,the fifth petitioner took passage on the train at Bushnell, in this state, fOl' ,Scottsburg. The speed of the train.on arriving at Scottsburg station was lessened for the purpose of stopping at that ,station. While the train was still slowly moving, three passengers left. it, reaohing the ,platform at the station in safety; but, w,hile the train was still in motion the petitioner went out upon the rear end of the forward car of the train and was standing on the lower step, the train having apparently almost ceased.to move; and while he was in the act of stepping from the, car to the platform of the station, the ear was moved forward with a jerk, in consequence of whioh the petitioner was suddenly thrown with violence upon the of the station and Admitting these to be tl:}fl material faots established by. the evidence, the question is whether the petitioner is entitled to recover, waiving all other questions which have been made and argued in the case. The principal difficulty in this case arises from what the. evidence shows, and in fact what all our experience proves, that' the passengers who intend to leave a train at a particular station where
