Jacobson v. Bentzler

SiebecKER, J.

The evidence of the plaintiff shows that t]íe transactions on which relief is sought took place between the parties on Sunday. It is undisputed that plaintiff on this day delivered to and that defendant received from him a check for $1,000; that the written agreements expressing the conditions of the loan were executed and delivered on Sunday ; and that the deed, which had been signed by the grantor, was handed to plaintiff on the same day. The only part of the transaction which occurred thereafter was that the defendant had the deed acknowledged and left for record, with directions to the register of deeds to mail it to the plaintiff. The time of payment of the check and the acknowledgment and recording of the deed are relied on as showing that the alleged loan was not made on Sunday: Firstly, upon the ground that the alleged loan to defendant was not made until the check had been paid at the bank; and, secondly, it is claimed that the loan was not made until the deed was acknowledged, recorded, and transmitted by mail to plaintiff, and that these acts were essential to the delivery of the deed and were necessary steps to give legal efficacy to the transaction. As to the first point it seems clear that acceptance of a check on a bank is in the nature of a conditional payment, which becomes complete when accepted and when the amount due on it is actually paid, and that such payment relates back to the time of its delivery. 22 Am. & Eng. Ency. of Law (2d ed.) 5.6:9; 2 Daniel, Neg. Inst. (5th ed.) § 1623. Under the circumstances shown, the fact that defendant received the money on the check after Sunday does not relieve the transaction from *569 tbe operation of tbe Sunday law. Tbe same is true witb respect to tbe acknowledgment, tbe recording, and tbe .transmission of tbe deed. These were mere incidents to tbe transaction wbicb constituted tbe making of tbe loan. Tbe alleged obligation for tbe repayment of tbe money loaned arises out of wbat took place on Sunday.'

Plaintiff is not relieved from difficulty by tbe claim that tbe acts done after Sunday were in tbe nature of a ratification •of that wbicb preceded, for it bas been beld that tbe loaning ■of money on Sunday is within tbe meaning of tbe statute prohibiting tbe doing of business on tbe first day of tbe week. This makes tbe contract void and not susceptible of ratification. Troewert v. Decker, 51 Wis. 46 , 8 N. W. 26 ; Brown v. Gates, 120 Wis. 349 , 91 N. W. 221 , 98 N. W. 205 , and cases cited; Vinz v. Beatty, 61 Wis. 645 , 21 N. W. 787 ; Sherry v. Madler, 123 Wis. 621 , 101 N. W. 1095 . Tbe fact that defendant in bis answer did not assert tbe invalidity of tbe •contract upon tbe grounds now advanced does not preclude him from insisting that the agreement cannot be enforced. Upon tbe ground of public policy, all tbe parties to such an .agreement are deemed equally guilty and are denied tbe usual .remedies of tbe law for its enforcement. Pearson v. Kelly, 122 Wis. 660 , 100 N. W. 1064 .

Tbe judgment dismissing tbe action was properly awarded.

By the Court. — Judgment affirmed..