Thompson v. Williams

Whether a sale of goods on Sunday is to the disturbance of others, the facts not being in dispute, is a conclusion of law. The vendor of goods sold on Sunday cannot recover for their price, when the sale was not a work of necessity or mercy. The vendee of goods sold on Sunday, in violation of Gen. St., c. 255, s. 3, who has asserted and maintained his title to the goods in an action against the vendor for taking the same from his possession, is not estojiped to set up the defence of sabbatical illegality in an action by the vendor to recover for their price.

Assumpsit, for $75, the price of two cows sold by the plaintiff to the defendant on Sunday. Fifteen days after the sale, the plaintiff took the cows from the defendant, claiming that the title was not to pass until the price was paid. For that taking the defendant brought an action of trespass against the plaintiff, and recovered a judgment (the damages being assessed at $75), on the ground (as the record shows) that the cows were the property of the defendant by virtue of the sale on Sunday, and the sale was absolute.; That judgment the plaintiff has satisfied. At the trial of this case the plaintiff was the sole witness. On cross-examination, he testified that on the Sunday of the sale he was in his saw-mill making repairs, when the defendant came in; that no one else was then present; that the defendant wanted to buy the cows, and they talked about a sale of them ; that the defendant went down and saw them, and came back to the mill; that one Wiggiu came in; that the defendant said he had been down to see the cows, and had made up his mind to give |75 for them ; that the plaintiff said he could not sell them for that, but finally concluded to accept the offer, and the bargain was made and the defendant drove them homo ; and that, at each interview, they talked a considerable time about the bargain. The sale was not a work of necessity or mercy. The defendant moved for a nonsuit on the ground that the sale was prohibited by the Sunday law. Gen. St., c. 255, s. 3. The court denied the motion, and the defendant excepted. There was nothing for the jury, unless the question whether the sale was “to the disturbance of others” was a question of fact. The plaintiff claimed that the Sunday law is not a defence in this case, and that the defendant,having asserted and maintained his title under the Sunday sale in the former suit, is estopped, in this action, to set up the defence of sabbatical illegality. Verdict for the plaintiff.