Opinion
Decided December, 1879.
An action cannot be maintained to recover compensation for labor and services, not of necessity or mercy, performed on Saturday, Sunday, and Monday, under an entire contract made in contemplation of part performance on Sunday.
ASSUMPSIT. Facts found by a referee. The plaintiff, Thursday, August 10, 1876, took a job of the defendant to move his goods from Manchester to New London for $20, he to bear the plaintiff's expenses, and fixed upon Saturday as the day to start from New London. The parties started on the day fixed, reached Manchester the same night, loaded the goods, and started back Sunday morning at 3 o'clock. They fed their team and breakfasted alone at Goffstown, calling the landlord to serve them, and stopped two hours, talking with the landlord and others. At Contoocookville they fed their horses, saw and talked with people, and went on to South Sutton, where they arrived at 12 1/2 o'clock Monday morning. They travelled by night to avoid the heat. They met many people during the day. Monday they arrived at New London. There was no express agreement to return or travel on Sunday, but the plaintiff expected to do so when he took the job.
Flanders, for the plaintiff.
Shirley, for the defendant.
At the time of making the contract to move the defendant's goods, the plaintiff contemplated a part performance of it on Sunday, and the subsequent performance was in part on that day. The removal of the goods was not a work of necessity or mercy, and therefore the contract, being in violation of Gen. St., c. 255, s. 3, was illegal. The contract being entire, the plaintiff cannot recover for the labor performed on Saturday and Monday. Kidder v. Blake, 45 N. H; 630; Bixby v. Moor, 51 N.H. 402.
Judgment for the defendant.
ALLEN, J., did not sit: the others concurred.