
    ST. LOUIS & S. F. R. CO. v. SWEARINGEN et al.
    
    No. 1730.
    Opinion Filed May 14, 1912.
    (123 Pac. 1122.)
    1. SUNDAY — Contracts—Ratification. A written contract for the shipment of live stock executed by shippers and a railway company on Sunday will not be held invalid and void where the stock is loaded and shipped under the same, the shippers taking passage by virtue of the terms thereof, and in other ways recognizing it in the course of shipment, delivery, and settlement, which occurred on a week day, but these acts will be held to constitute a ratification of adoption thereof.
    2. PARTNERSHIP — Actions—Publication of Acknowledgment to Certificate. The failure to publish the acknowledgment to the certificate showing the names of the m embers of a partnership as provided for in sections 5023 and 5025, Comp. Laws 1909, is not such an omission as will require the dismissal of an action brought by such partners where the certificate filed and publication made are in all other particulars regular.
    (Syllabus by the Court.)
    
      Error from Noble County Court; H. E- St. Clair, Judge.
    
    Action by C. W. Swearingen and Hayes L. Greenleaf, partners, doing business under the firm name of Swearingen & Co., against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    
      W. F. Evans, R. A. Kleinschmidt, and W. H. Cloud, for plaintiff in ei;ror.
    
      P. W. Cress, for defendants in error.
   DUNN, J.

This case presents error from the county court of Noble county. Action was brought by defendants in error-for damages alleged to have been occasioned by the railway company in the shipment of certain live stock for plaintiffs. No issue is made in this court that there was either lack of negl'i-gence or that the recovery is too great. To plaintiffs’ petition setting forth facts showing the shipment, the negligence, and the damages, the defendant filed answer setting up that the shipment was made under a written contract under the terms of which claims for damages were required to be made by the owner giving notice of his claim in writing before his stock was removed from the place of destination or mingled with other stock, and that a failure to comply therewith should be a bar to the recovery of any and all claims. Plaintiffs in their reply admit the signing of the said contract, but allege that the signatures were secured under duress and by fraud, were without consideration, and that the terms of the same have been waived.

On the trial of the cause evidence was offered by the plaintiffs sufficient to establish that the contract was entered into on Sunday, and the claim is made in this court by counsel for plaintiffs that by reason of this fact the provision for notice, the reasonableness and validity of which is not otherwise contested, was void, and the court; over the objections of the defendant, instructed, the jury on this theory and refused an instruction asked by the defendant, in substance that, if the jury should find the contract between plaintiffs and the defendant was ratified by any of the acts of plaintiffs on a week day, even though the same was entered into on Sunday, it was thereby rendered valid and the parties were bound by the terms thereof.

In the refusal of this latter instruction, in our judgment the court was _ in. error. The contract into which the parties entered was lawful in every particular with the exception of the time it was executed. The doing of the things provided for were lawful and were all,acts necessary and essential to.the business affairs and the life of our people, and conceding or assuming, without deciding, for we need not, that the contract entered into with the carrier for the shipment of live stock on Sunday was invalid, yet the shipment provided for and the service to be rendered under it was expected to and did cover a time when no objections to its legality existed.- During such time all parties acted under the contract as if it were valid, and any invalidity which may have existed because the contract was formally executed on Sunday was cured by such subsequent ratification or adoption of its terms by the parties at a time when they might lawfully do so. Such seems to be the force and effect of the adjudications obtaining in this jurisdiction. Helm & Son v. Briley, 17 Okla. 314, 87 Pac. 595; Capps at al. v. Hensley, 23 Okla. 311, 100 Pac. 515.

That a Sunday contract might be affirmed or ratified by its subsequent recognition by the parties was held, in a very satisfactory discussion of this question, by Justice Gillette of the Supreme Court of the Territory of Oklahoma in the case of Helm & Son v. Briley, supra, which is so pertinent to the case at bar that no further discussion will be indulged in here. The case of Capps et al. v. Hensley, supra, was one wherein a contract, entirely unenforceable and without legal effect at the time of its execution, was afterwards acted upon as if it were valid, and this court held as a result thereof that, while the parties had not technically ratified the previous contract, they had adopted its terms at a time when they might have lawfully contracted, and that such adopted contract was valid. So it is in the case at bar; the plaintiffs herein drove their stock to the railroad and made demand on the company for cars within which to ship them to the Kansas City market. The company complied with their request and furnished the cars at the time demanded — Sunday morning. The plaintiffs thereupon loaded their stock into these cars and at that time signed and executed the contracts under which they were carried and under which plaintiffs themselves took passage on the train for the market. The plaintiffs received all of the benefits given them under the terms of the contracts, and the earliest time that they tendered issue that they were void or voidable was when the company insisted that they comply with their terms in reference to the notice of a claim for damages. Such a plea certainly does not appeal very strongly to a court, and as was said by Justice Gillette in the case above noted:

“No court ought to refuse its aid to enforce such a contract as exists in this case on any.doubtful or uncertain ground.”

We have examined the objection made by counsel for defendant to the statutory notice of the partnership of plaintiffs, and in our judgment the same is without merit. The statute (sections 5023 and 5025, Comp. Laws 1909) does not require publication of the acknowledgment to the certificate, and under the proof tendered on this subject, as we view it, plaintiffs were entitled to maintain their cause.

The judgment and order of the tidal court denying defendant a new trial is accordingly reversed, and the cause remanded, and a new trial granted.

HAYES, WILLIAMS, and ICANE, JJ., concur; TURNER, C. J., absent, and not participating.  