Charles Eberle, Respondent, v. Isaac Mehrbach et al., Appellants

Charles Eberle, Respondent, v. Isaac Mehrbach et al., Appellants. (Argued January 26, 1874; decided February 3, 1874.) A contract for the sale of property made upon Sunday ia not, for that reason, void. To bring a transaction within the provision of the statute relating to the observance of Sunday (1 B. S., 676, § 71), which declares that no person shall expose to sale any wares, etc., on Sunday, clear proof of its violation must be produced. A private sale of property, not “ exposed to sale,” is not within its prohibitions. This was an action for a breach of warranty upon sale of a horse. The parties exchanged horses upon Sunday. Defendants warranted the horse exchanged by them sound. The evidence showed a breach of this warranty. The evidence tended to show that the property was not exposed to sale, but that the contract was made privately between the parties, without attracting the attention of other persons. Defendants gave evidence that they were in the habit of exposing horses for salé on Sunday. Defendants moved for a nonsuit upon the ground that the contract was void, it being made upon Sunday, and was within the prohibitions of the statute. (1 R. S., 676, § 71.) The referee denied the motion, and found that, the transaction was not in contravention of said statute and was valid. Held as above; also, that the evidence that defendants were in the habit of exposing horses for sale was immaterial, as the question was simply as to what was the character of the particular transaction. Whether defendants could take advantage of their own violation of the statute to avoid their contract, quere. Samuel Rand for the appellants. Mr. Moore for the respondent. [MAJORITY — Chukch, Oh. J.,] Chukch, Oh. J., reads for affirmance. All concur. Judgment affirmed.