Opinion
No. 32938.
December 13, 1937.
1. SALES.
A contract for purchase of engine was governed by laws of state in which contract was made, delivered, and was to be performed.
2. SUNDAY.
A ratification of a contract void under Arkansas Sunday law need not be based on a new consideration, but old consideration is sufficient (Crawford Moses' Dig. Ark., section 2732).
3. SUNDAY.
In an action for balance of purchase money due under written compromise settlement executed on Sunday in Arkansas where it was to be performed, whether buyer refused payment of balance without offering to return property or without making any claim of nonliability on ground of invalidity of contract, and thereby ratified such contract, held for jury (Crawford Moses' Dig Ark. section 2732).
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Lotterhos Travis and Vardaman S. Dunn, all of Jackson, and D.D. Panich, of Little Rock, Ark., for appellant.
The validity of the contract in suit is governed by the laws of the State of Arkansas.
A.L.I., Restatement of the Law of Conflict of Laws, sec. 347; McKee v. Jones, 67 Miss. 405, 7 So. 348.
The contract in suit is a valid and binding instrument. We respectfully submit that the written contract, though signed by all parties in Arkansas on Sunday, nevertheless is a valid instrument and binding upon appellee, Boyle Gin Company, as a result of its subsequent acts and conduct on secular days, whereby said written contract was fully ratified, confirmed and adopted.
McKinney v. Demby, 44 Ark. 74; Planters Fire Ins. Co. v. Ford, 153 S.W. 810, 44 L.R.A. (N.S.) 289; American Ins. Co. v. Dillahunty, 117 S.W. 245; McElhannon v. Coffman, 292 S.W. 393; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783.
In the light of the clear announcements of the Arkansas court, we deem it unnecessary to discuss at length the theories supporting the rule adopted in that state. Whether this be called ratification, waiver, adoption, estoppel, quasi estoppel, or plain natural justice, the fact remains that appellee, Boyle Gin Company, will not be permitted to appropriate the benfits from its contract and escape its burden by concealing itself behind the shadowy cloak of a technical fiction.
We respectfully submit that the written contract, although signed by all parties in Arkansas on Sunday, nevertheless is a valid instrument, and binding upon appellee, J.S. Penn, as a result of his subsequent acts and conduct on secular days, whereby said written contract was fully ratified, confirmed and adopted.
Appellant is entitled to recover on proof of the oral agreement made on a secular day. If this court should hold that the written contract is invalid, we respectfully submit that appellant is entitled to recover on proof of the oral agreement identical in terms with the written contract, made Friday, August 14, 1936.
Morrison v. Ives, 4 Sm. M. 652; Gibson v. Powell, 5 Sm. M. 712.
Green, Green Jackson, of Jackson, and E.B. Taylor, of Shelby, for appellees.
The validity of the contract in suit is governed by the laws of the State of Arkansas, for the sake of argument, but said contract is void under Arkansas law and under Mississippi law.
The completed transaction, the final performance of the contract was to be in Mississippi, and as to whether payment might be required on a void contract to be finally performed in Mississippi we submit that there is authority that the law of Mississippi will control.
Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350; The Kensington, 183 U.S. 263, 46 L.Ed. 192; Pritchard v. Norton, 106 U.S. 124, 27 L.Ed. 108; Boyle v. Zacharie, 6 Pet. 635; Bell v. Bruen, 1 How. 169; Greenlee v. Hardin, 157 Miss. 229, 127 So. 777, 71 A.L.R. 741; Restatement of the Law, Conflict of Laws, 311, et seq.
Nevertheless, accepting for the sake of argument, the general proposition urged by appellant that the law of the State of Arkansas controls, yet they are faced with a void Sunday contract, admittedly, under the laws of Arkansas and of Mississippi.
Tucker v. West, 29 Ark. 386; Kountz v. Price, 40 Miss. 341; New York Life Ins. Co. v. Mason, 225 S.W. 424; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.
The contract in suit is void and unenforceable. There was not ratification and adoption by appellee, Boyle Gin Company, but it refused to be bound thereby at the first opportunity.
Odeneal v. Henry, 70 Miss. 172, 11 So. 630; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Barber v. Loveland, 166 Miss. 625, 146 So. 854; New York Life Ins. Co. v. Mason, 225 S.W. 424, 19 A.L.R. 618; Davis v. Murphy, 177 Ark. 183, 5 S.W.2d 936; Burnett v. Elsesser, 22 S.W.2d 386; Sussman, Wormser Co. v. Sea Food Co., 127 Miss. 420, 90 So. 116; Tucker v. West, 29 Ark. 386.
The remedy sought by Boyle Gin Company by denial and counterclaim for breach of warranty and failure to repair is approved by the Arkansas court.
Holcomb Hoke Mfg. Co. v. Fish, 177 Ark. 631.
There was not ratification and adoption by appellee, J.S. Penn, and no demand thereon ever made until this suit filed when Penn defended on the ground that contract was void and unenforceable.
If written contract is void there can be no recovery on prior oral contract for such oral contract was not the basis of this suit and had become merged into the void and unenforceable written contract here in issue.
As we understand the law in Mississippi and in Arkansas prior oral negotiations, dealings and understandings are all merged into and become a part of the final written agreement and regardless of what may have occurred previous to the written contract, that instrument, when sued on, must stand or fall as the covenant and agreement between the parties.
J.I. Cash Threshing Machine Co. v. McCoy, 111 Miss. 715, 72 So. 138; McInnis v. Manning, 131 Miss. 119, 95 So. 250; Dowling v. Smiley, 150 Miss. 272, 116 So. 294; Doniphan, etc., R.R. Co. v. Missouri, etc., R.R. Co., 102 Ark. 475, 149 S.W. 60.
Appellant, an Arkansas corporation, brought this action in the circuit court of Hinds county against appellees, Boyle Gin Company, a Mississippi corporation, and J.S. Penn, to recover the balance of the purchase money claimed to be due by appellees to appellant for a Fairbanks-Morse oil engine. The trial resulted in a directed verdict and judgment in favor of appellees, from which judgment appellant prosecutes this appeal.
Appellee Penn, a broker, purchased the engine from appellant for the gin company on or about the 1st of August, 1936. Penn bound himself for the purchase price and paid $425 cash thereon. Appellant shipped the engine to the gin company at Boyle. After an examination, the gin company declined to accept the engine and pay for it, because it was out of repair, and so notified appellant. Thereupon the parties agreed that the gin company should ship the engine to Pine Bluff, Ark., for the necessary repairs. That was done, the engine arriving there on or about the 15th of the month. This compromise settlement was embodied in a written contract dated August 15, 1936, which was Saturday, and executed and delivered on the next day, Sunday, at Little Rock, Ark., and was signed by appellant, the gin company, and Penn. The contract provides that appellant should pay the costs of transportation of the engine from Boyle to Pine Bluff and make the following repairs thereon: Turn the shaft, if needed; reline the bearings or make new ones, if required; rebore the cylinders, furnish new pistons and rings, together with new or reconditioned pins, if needed; and furnish new heads and pay the costs of transportation back to Boyle. The contract states that these repairs would cost approximately $950, and freight charges back about $150, and stipulates that Penn should pay $300 of the costs upon completion of the work, and the gin company the balance, and, in addition, $250 and the balance of the purchase price, $1225, upon redelivery of the engine at Boyle. Appellant made repairs and redelivered the engine at Boyle. Both the gin company and Penn refused to pay the sums agreed upon, whereupon appellant brought this suit to recover the same.
The gin company and Penn pleaded the general issue and gave notice thereunder that the contract was void because executed and delivered on Sunday, and therefore there was no liability under it. Other defenses were also embodied in the notice, but the court held the contract void and gave a directed verdict and judgment upon the ground alone that it violated the Sunday law.
Appellant contends that, notwithstanding the contract was executed and delivered on Sunday, it was binding because it was afterwards ratified by the parties. The question, and the only one, is ratification. The contract was made, delivered, and was to be performed in the state of Arkansas, therefore the question is governed by the laws of that state. The Arkansas Sunday statute is in this language: "Laboring on Sunday — penalty. Every person who shall, on the Sabbath or Sunday, be found laboring, or shall compel his apprentice or servant to labor or to perform other services than customary household duties, of daily necessity, comfort or charity, on conviction thereof, shall be fined one dollar for each separate offense. Rev. Stat., chap. 44, div. 7, art. 2, section 1." Section 2732, Crawford Moses' Dig. (1921).
The statute is substantially the same as ours, section 1131, Code 1930, as amended by Laws 1932, c. 248, except the latter excludes from its operation railroads, steamboats, telegraph and telephone lines, street railways, newspapers, livery stables, garages and gasoline stations, ice houses, and, in municipalities of less than 5000 inhabitants, meat markets.
The testimony tended to show that, after the engine was repaired and redelivered to the gin company, appellant demanded of the latter the purchase price overdue, payment of which was refused, notwithstanding the gin company did not offer to return the engine, but retained it, making no claim of nonliability on the ground that the contract was void under the Sunday law. We are of the opinion that, if those were the facts, under the decisions of the Supreme Court of Arkansas they constituted a ratification of the Sunday contract and a renewal thereof on a secular day; it was not necessary that ratification be based on a new consideration — the old consideration was sufficient. McKinney v. Demby, 44 Ark. 74; Planters' Fire Ins. Co. v. Ford, 106 Ark. 568, 153 S.W. 810, 44 L.R.A. (N.S.) 289; McElhannon v. Coffman, 173 Ark. 60, 292 S.W. 393; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783. In the Demby Case the court used this language: "A demand of payment, in pursuance of the terms of the agreement, would have the same effect, as far as the vendor is concerned, and it would put the purchaser to his election to determine whether he would adopt the Sunday terms or insist upon the invalidity of the contract."
We cannot say from the record that the evidence of ratification is without conflict; therefore it was a question for the jury.
Reversed and remanded.