
    Charles Brown v. Ward Timmany.
    Money paid on an agreement, entered into on Sunday, may be recovered back so long as the contract remains executory.
    Aliter, if the agreement has been executed.
    Error to the court of common pleas of Athens county. Reserved for decision in this court by. the Supreme Court in that county.
    The action was assumpsit, commenced originally before a justice of the peace, by whose judgment the plaintiff recovered six dollars damages, and costs of suit, on April 11, 1850.
    The defendant appealed to the court of common pleas, where the cause, after sundry continuances, was tried by a jury, at the September term, 1851.
    Under the charge of the court, the jury returned a verdict for defendant.
    The bill of exceptions shows that the plaintiff and defendant made an agreement, on Sunday, whereby the defendant was to deliver to the plaintiff a yoke of oxen, in exchange for a colt of the plaintiff and five dollars “ boot-money.” At the time of making the agreement, the plaintiff paid to the defendant the five dollars, and the defendant was to bring the oxen to the plaintiff’s house on the next day, and take away *the colt. If he failed to do so, he was to forfeit and pay to the plaintiff one dollar. The date of the contract is not disclosed in th'e bill of exceptions.
    The defendant wholly failed to fulfill said agreement. He would neither deliver the oxen nor receive the colt. This action was brought to recover back the money paid.
    At the request of counsel for the defendant, the court instructed the jury, that, if they should find that said agreement was made on Sunday, and that said sum of five dollars was paid in part execution of the contract for an exchange of property, the money paid by plaintiff could not be recovered back under the common counts in the declaration, although they should find that the defendant had wholly failed to comply with the agreement on his part* Motion for new trial overruled.
    It is insisted by plaintiff that the court mistook the law in this their charge to the jury, and that the judgment should be reversed.
    John Welch, for plaintiff:
    The court instructed the jury that plaintiff could not recover back the five dollars, as the contract was made on Sunday. This was clearly wrong.
    It has been decided by this court, that a suit can not be maintained upon a contract made on a Sunday. This decision I do not seek to disturb. What I maintain is, that money paid on a contract made on Sunday, where the contract remains executory, can be recovered back—putting contracts made on Sunday on the same footing with other illegal contracts.
    The common pleas fell into the error from the statements made in digests, that “ money paid upon an illegal contract can not be recovered back;” whereas the cases show that the contracts were executed, in all cases where the court refused to allow it to be recovered back, and that the reason assigned was, that to allow it to be recovered back, in violation of the *contract, would be to allow the party to take advantage of his own wrong.
    The law of illegal contracts is :
    1. That no suit upon them will be sustained; that is, they will not be enforced.
    
    
      2. That when executed, no suit will be sustained to recover back money paid, or damages for any other thing done in execution of them; and,
    3. That while they remain executory, either party may recover back money paid, either in part or whole execution of the contract; that is, either party may rescind, and be restored to his former condition, if not in default himself.
    
    The reason, in the first ease, is, that courts will not aid to do what is illegal. In the second cage, the illegal thing having been already done, the court will not aid either party to violate a contract; although illegal. But in the third ease, the court is not asked to aid the execution of the contract, or to aid the plaintiff to violate it; but simply to compel the party who has violated it, as well as been guilty of making it, to restore the party who has not violated it, to his original rights. In doing this, the court gives no sanction to the illegal contract, or to its violation, but discountenances both.
    
    All the cases where it is stated that money paid upon an illegal contract can not be recovered back, are cases where the defendant 
      
      has executed the contract, and is, therefore, not in fault. See 3 Term, 266; 8 Ib. 575 ; 1 East, 96; 8 Taunt. 492.
    In Loury v. Bordean, Doug. 451, where the plaintiff was allowed to recover, the court first lay down the rule, that “ there is a clear distinction between contracts executed and executory.”
    In Jacques v. Golightly, premiums paid to an illegal lottery-office -keeper, who refused to pay over what had been won, were allowed to be recovered back.
    Chittyon Contracts, 637 : “If the contract be executed orperformed,, and both parties are in pari delicto, no action lies *to recover back money paid; but if the contract be executory, or not performed, the plaintiff may disavow it before its completion, and recover back money paid under it to the other party, under the count for money had and received.”
    In Greenman v. Curtis, 6 Mass. 381, the plaintiff, who had sold defendant a cargo, to be paid for in slaves, and who had received part of the slaves, and defendant’s note or agreement for the remaining slaves, was allowed to abandon the note, and recover under the count for goods sold, the balance of the price of the cargo.
    Roscoe on Evidence, 232: “Where money has been paid in pursuance of an illegal contract, it is in certain cases recoverable as money had and received to the use of the party paying it. It may be recovered in the following caso :
    “ When the contract x’emains executory, though the parties be in pari delicto,” citing 2 B. & P. 467; 3 Taunt. 277; 4 Ib. 290; Doug. 468, etc.
    This is a suit to x-escind the contract which the defendant has refused to fulfill. This is his act of rescission. The suit, or demand of the money, is .the plaintiff’s act of rescission. This is the strongest case of rescission for the plaintiff. But plaintiff may x’escind and recover back where defendant is not in default, as in 3 Taunton, 277, and 4 Ib. 290, where the plaintiff recovered back money advanced on an illegal wagex*, having brought his suit before the bet was decided. Cowles v. Regnet et al., 14 Ohio, 55 ; 4 Ohio, 400 ; 7 Ohio, 70. 
    
    John E. Hanna, for defendant, insisted:
    That the acts done by the parties in this case were not wrong per se; the acts were right in themselves, but wrong because done at a time prohibited by law. The cases cited by plaintiff’s ^counsel are all for acts wrong-in themselves, and this is the distinction between those cases and the one at bar.
    I call the attention of the court to the authority cited from Chitty: “ But if the contract be executory and the plaintiff dissent from, or disavow, the contract before its completion, he may, on disaffirmance thereof, recover back money paid under it,” etc. The election to rescind must be taken and notified in due time—before that which is unlawful is done. Why is it that whore the illegal contract is executory, the money paid may be recovered back ? Because the party before he does that which the law prohibits, recants and notifies the other party; and the unlawful act is not done.
    Story defines an executory contract—Contracts, sec. 18. In this case the illegal act was consummated in the making of the contract, and there is no pretense that there was a rescission or notice to the other party by the plaintiff, before the illegal act was done. Sellers v. Dugan, 18 Ohio, 493, is conclusive. I also refer to Chit. on Con. 657 C. 4; Holman v. Johnson, Cowp. 343 ; Drury v. Defontain, 1 Taunt. 139 ; Fennell v. Ridler, 5 Barn & Cres. 406 ; Story on Con. ch. 8, sec. 613; 11 Wheat 258; Bartle v. Coleman, 4 Pet. 284; Craig v. Missouri, 4 Pet. 436; Lyon v. Strong, 6 Vt. 219; Lovejoy v. Whipple, 18 Vt. 379; 2 Greenl. Ev., sec. 111-199, n. 2; Cincinnati v. Rice, 15 Ohio, 225.
    The case at bar is not an executory contract, but falls under what Strong on Contracts (sec. 19) denominates as a class “partaking of the nature both of executed and executory contracts.”
    
      
       See 6 Ohio, 442; Moore v. Adams, 8 Ohio, 372; Thomas v. Cronise, 16 Ohio, 54.
    
   Spalding, J.

In Sellers v. Dugan, 18 Ohio, 493, this court, with one dissenting voice, decided that an ordinary contract, made in the course of business, on a Sunday, is void, and that no action can be sustained to recover damages for the breach of such a contract.

The question whether money paid on the contract could be recovered back in the action of assumpsit, was not submitted, much loss determined, in that suit.

*The question is directly presented for adjudication in the case at bar, and we have no hesitation in saying that the court of common pleas erred in its instructions to the jury.

We have declared that a business contract, made on Sunday, is void. Neither party will receive the aid of the court, while seeking to enforce performance of the agreement, or to recover damages for its breach.

Nor would we help either party to rescind, if the agreement was wholly executed, upon the principle applicable to parties in pari delicto.

Where, however, as in this case, money has been advanced in part performance of a void contract, and either party sees fit to put an end to its further fulfillment, the amount paid may recovered back, in indebitatus assumpsit, as for money had and received.

In the present case, the agreement had never been wholly executed.

The plaintiff paid to the defendant five dollars in money, and the defendant agreed to deliver to the plaintiff on the next day, a yoke of oxen, and to receive a colt in exchange. The defendant refuses to deliver the oxen, on the ground that he entered into the contract on a Sunday, and it is void. So far he is sustained by the law.

But if he repudiates and refuses to execute the agreement, on the ground that it was a business transaction on the Sabbath, and consequently void, upon what pretense of right can he withhold from the plaintiff the money that he advanced upon the faith of that agreement ?

He has put an end to the execution of the contract, as he had a legal right to do.

He now holds five dollars of the plaintiff’s money without consideration, and is, ex cequo et bono, under as great obligation to refund it as if ho had accidentally found it on Sunday. The well-settled rule of law undoubtedly is, that^ where money has been paid in pursuance of an illegal contract that remains oxe'eutory, it *is recoverable in an action for money had and received to the use of the party paying it. Aliter, when the agreement is executed.

The judgment of the common pleas is reversed, with costs.  