Ladd v. Rogers

Hoar, J.

The presiding justice in the superior court in structed the jury correctly, that if they found the sale of th horse was made on Sunday it would be void, and the plaintiffs could not recover upon 'such a contract. The sale, in that case, was a transaction of secular business on the Lord’s day, not a work of necessity, charity or mercy, and was prohibited by law. Being an illegal and void act, not merely at the election or for the protection of either party, but upon grounds of public policy, it had no validity whatever; and as was held in Day v. McAllister, 15 Gray, , was wholly nugatory, passed no property, gave no rights, and was incapable of any subsequent ratification.

Giving no effect, therefore, to the sale, the defendant was found in possession of the horse, which was the plaintiffs’ property, under no contract which the law can recognize, express or implied. The court ruled that “if the defendant afterwards kept the horse and treated him as his own, without returning him to the plaintiffs, the law would imply a promise on the part of the defendant to pay them the fair value of the horse at the time he was taken, and that the plaintiffs could recover the same in this action,” which is an action upon an account annexed for goods sold and delivered.

We are of opinion that this instruction was erroneous, and that the exception to it is well taken.

The possession of the horse by the defendant, although obtained by an act which was a violation of law, was not a wrong to the plaintiffs, who were in pari delicto. It was obtained, as they undertook to prove, with their full consent. The subsequent use of the horse was without title, and the question involved is therefore simply this : whether if one without right makes use of a chattel belonging to another, the law will imply from this fact a contract of sale 1 In other words, can a party entitled to an action cc trover waive the tort, and sue in assumpsit?

The only authority cited in favor of the proposition is Hill v. Perrott, 3 Taunt. 274. That case decided that the mere possession of goods which had been the plaintiff’s property, unaccounted for, raised an implied promise to pay for them. But there are many respectable authorities which involve the same principle; and some dicta in English and American cases and text writers which seem to support the rule as one of general application. Mr. Greenleaf, in, his treatise on evidence, states it thus : “ If one commit a tort on the goods of another, by which he gains a pecuniary benefit, as if he wrongfully takes the goods and sells them, or otherwise applies them to his own use, the owner may waive, the tort, and charge him in assumpsit on the common counts, as for goods sold or money received, which he will not be permitted to gainsay.” 2 Greenl. Ev. § 108. In New Hampshire, the same rule was adopted in Hitt v. Davis, 3 N. H. 384.

But upon a full review of the authorities by Strong, J., in the court of common pleas, which is cited in a note to the opinion, it was held by this court in Jones v. Hoar, 5 Pick. 285, that one whose goods have been taken from him or detained unlawfully, cannot waive the tort and maintain assumpsit for goods sold, except against the executor of the wrongdoer; but that if the goods have been sold by the person who took them be may affirm the sale, and have an action of money had and received for the proceeds. The doctrine of that case has been reaffirmed and adhered to in subsequent cases. Allen v. Ford, 19 Pick. 217. Brown v. Holbrook, 4 Gray, 102. Berkshire Glass Co. v. Wolcott, 2 Allen, 227.

We think these cases applicable to the case at bar. The use of the horse by the defendant in pursuance of the illegal contract made on Sunday would give the plaintiff no right of action whatever. This was decided in Gregg v. Wyman, 4 Cush. 322. If the defendant subsequently converted him to his own use, the plaintiff must adopt the form of action suited to such an injury.

Exceptions sustained.