
    [*] CROCKET against VANDERVEER.
    ON CERTIORARI.
    The action below, was brought by Vanderveer, against Crocket. The account rendered to the justice was as follows:—
    
      
    
    The defendant had a small account, which was admitted by the plaintiff, which reduced the amount of the plaintiff’s demand to $13.20, for which the judgment was rendered below.' It appears by the record of the justice, that on the trial, the defendant moved for a nonsuit on two grounds:
    1st. That a contract for the horse was made on a Sunday, which fact the justice certified, was proved by one of the plaintiff’s witnesses.
    2d. That because the horse was to be paid for in turning, which the justice also certifies was proved by one of the plaintiff’s witnesses. The justice overruled the motion for a nonsuit.
    
      Hunter, for plaintiff.
    It appeared by plaintiff’s own witness, that the contract was made on the Sabbath, which being an unlawful transaction, rendered it void. 8 Term Rep. 455. A sale of goods in 'market overt on Sunday, is not valid. Jacob’s L. D. title Sunday. Again, it was proved by the plaintiff’s witness, that it was a part of the contract, that the horse should be paid for in turning; that is, the mechanical labor of the defendant. This could not be demanded in money, until the defendant had refused or neglected to perform the contract on notice or request. In this case, the action was commenced within a few days after the contract was made, which [*] shows, that that part of the contract was wholly disregarded in the court below.
    
      Ewing, contra.
    A contract made on a Sunday is binding, notwithstanding the parties to the contract may be liable to be punished for a breach of Sabbath. 12 Vin. A; 1 Oro. 485. The matter cited from Jacob’s L. T>. grew out of the statute of 29 Oar. 2, and is inapplicable to us.
    As to the contract stipulating that the horse was to be paid for in turning, if so, it ought to have been set out in the pleadings, and the fact put in issue and tried. This court, on certiorari, cannot take notice of it.
   Pexvixgtok, J.

This was an action of debt. One of the items of the account of the plaintiff below, was a charge for a bay horse. On the trial of the cause, the plaintiff’s witness swore that the bargain for the horse, was made on Sunday; and also, that the plaintiff was to take thé pay for the horse, in turning; that is, as I understand it, in the work of the defendant. On these two grounds, the defendant moved the justice to nonsuit the plaintiff, which he refused to do. For this supposed error of the justice, this certiorari is brought. Our statute for suppressing vice and immorality, Pat 339, enacts, that no person shall cry, show forth, or expose for sale, any merchandise, goods, chattels, &c., on Sunday, or sell or barter the same; that is, goods cried, showed forth, or exposed for sale. This clause of the act is no doubt made in imitation of the statute, 39 Car. 3, c. 7. It is to prevent the public exposure of goods, merchandise, &c., for sale on Sunday, and selling them in consequence thereof. I am inclined to think, that the [628] court would not aid the execution of a contract made under such circumstances. The sale, in such case, would resemble a sale made in market overt; but I am not prepared to say, that all contracts made on Sunday, are void.

[*] As to the second point, that the defendant was to take the pay for his horse in the work of the defendant, there is a mistaken notion in some parts of the State, on this subject; that because, in an action arising on contract, the specific thing contracted for cannot be recovered, therefore, in case the party who is entitled by the contract to receive it, choses to bring an action, he must recover its value in money. It is true, that if the defendant recover at all, he must recover a sum of money. But before he can recover at all, it is incumbent on him to make out that the defendant has not done what the contract required him to do; that he has broken his contract. If a shoemaker buys a cow, and contracts to pay for it in shoes, at the rate of twenty-five dollars, or a tailor does the same, and contracts to pay it in tailoring, the rational construction of the contract is, that the shoemaker' is to make such shoes, and the tailor such garments as the seller of the cow shall direct, and that in a reasonable time, according to the usual course of business in the neighborhood; and if he fails to do it, he has broken his contract, and is liable to an action for this breach of his agreement, and the measure of damages, no doubt, would be the sum agreed to be given in shoes or tailoring. But before an action can be sustained, the shoemaker or tailor must be in fault; he must-have refused or neglected to perform what the spirit and substantial meaning of the contract required of him, and this non-performance is the ground of the action, and the remedy an action on the case, on this special undertaking; it is not a demand founded on simple contract for the payment of money only, on which an action of debt may be brought, under the supplement to the act for the trial of small causes. The difficulty with me, however, is, how this court can take notice of this matter. The justice could not have nonsuited the plaintiff, as there were other items in the account which ought to have gone to the jury. It appears by the record, that [*] the jury found the whole sum contained in the plaintiff’s state of demand, deducting the account of the defendant, which was admitted by the plaintiff’ to be correct. This recovery is evidently wrong, as well as to the nature of the action, as to the merits of the controversy; and if this, was an action originally brought in this court, and tried at circuit, we should not hesitate in awarding a new trial. If the objection arose on a disputed fact, which is a proper subject for the jury to determine, I am clearly of opinion that this court ought not to intermeddle; but [629] it appears on the record, that the fact was proved by the plaintiff’s own witness, and does not appear to be controverted. On the whole, it appearing to me that the judgment below has been obtained contrary to plain principles of law, in which case, this court, in virtue of its superintending authority over inferior jmisdictions, holds a corrective power, I am of opinion, the judgment ought to be reversed.

Kiekpateick, C. J. and Rossele, J.

Concurred in reversing this judgment.

Judgment reversed.

Explained in Reeves v. Butcher, 2 Vr. 224.

See Van Riper v. Van Riper, 1 South. 150. Cited in Van Doren v. Van Doren, 2 Penn. 1022.  