The court are of opinion that one of the instructions given to the jury, although capable of a construction consistent with the rules of law, might also be understood in a sense which would be wholly erroneous; and we fear that it was applied and acted upon throughout the trial in that sense which tended to a wrong conclusion.
The instruction was “ that though the pigs were selected and marked on Sunday, and the price to be paid for them fixed on Sunday, yet if the pigs were to be weighed and delivered on Monday, and were so weighed and delivered, the contract of sale would not be void.” This was right, if it conveyed the Idea that the contract made by the delivery on Monday would not be void. But if the jury understood it to mean that the whole contract, including the agreement made on Sunday, would become valid and operative in law by reason of the weighing and delivery on Monday, they would be led to a wrong result. The recent cases of Day v. McAllister, 15 Gray, 433, and Ladd v. Rogers, 11 Allen, 209, are decisive upon the point. In those cases it was held that a contract which is illegal because made on the Lord’s day is wholly nugatory and void, and incapable of ratification; and that the rights of the parties depend exclusively upon their agreements on the day when it is lawful for them to perform secular business If all *23that took place on Monday, therefore, was the weighing and delivery of the pigs by the plaintiff, and the acceptance of them by the defendants, the price fixed on Sunday would not be binding upon either party, nor could the defendants avail themselves of any warranty which was made on Sunday. The plaintiff could only recover upon an implied assumpsit for a quantum valebant.
Upon the ground that the instructions of the court were ambiguous, and not so clear and full as the case required, and that the jury were likely to be misled by them, we think the exceptions must be sustained, and a new trial granted.
On another trial, the view which we take of the case may render the other exceptions taken immaterial. But as some of the same questions may arise in substance, if not in form, and they have been argued by counsel, it is proper to decide them.
If the breach of warranty or fraudulent misrepresentation on which the defendants rely relates to the existence of a contagious or infectious disease in any of the pigs sold, the evidence offered that other pigs in the same drove had the disease, and that the plaintiff knew it, would be competent. It would obviously be admissible to show, upon the question of how much the pigs sold were reasonably worth at the time of the sale, that they came from a drove in which they had been exposed to the disease; as this would affect their market value. And if they were sold in one lot, the value of the whole lot when sold would be the subject of inquiry, and they might be found to be collectively of no value, or of very little value, from their liability to communicate the infection, though some of them may not have died from the disease.
It has been held in a recent English case that, in an action for fraudulently misrepresenting that a cow sold to the plaintiff was free from infectious disease, if the plaintiff placed the cow with others which thereby caught the disease and died, he can recover as damages the value of all the cows. Mullet v. Mason, Law Rep. 1 C. P. 559. The nature of the subject matter of the warranty or deceit is such, that when animals are sold in one lot together, the warranty or representation as to the whole *24being single, we can have no doubt that the same principle should apply to the extent of a recoupment; and that the right to recoup in damages should not be confined to the diminished value of those which are proved to have the disease at the time of the sale. In determining the damages caused to the defendants by the breach of warranty or deceit, the defendants were therefore entitled to have the jury consider in recoupment of damages the whole loss to them occasioned by the presence, of the disease among the animals purchased, as well among those which took the infection after the sale as those which had it when the sale was made. Exceptions sustained.