Woel v. Griffith

McWilliams, J., delivered the opinion of the Court. The chancellor, Raine, J., declared the contract between the parties for the sale of realty “to be rescinded and null and void” because it had been entered into on a Sunday; 19 March 1967 to be exact. Oddly enough the contract would have been perfectly valid and enforceable had they postponed its execution until the first day of June, 74 days later. Laws of Maryland (1967), Ch. 196; Code, Art. 27, § 534F (1968 Cum.

Supp.). Neither party has appealed from the declaration of nullity. The narrow question thus presented arises out of Judge Raine’s refusal to allow the appellants (the Woels) to recover the $3,500 deposit required by the contract. We think the law of Maryland requires a contrary holding.

We shall dispense with a recital of the facts and circumstances leading up to the making and signing of the contract since the issue of its validity and enforceability is not before us. Immediately after signing the contract Dr. Gerard Woel went to France where he remained for about a month. Dr. Cecile Woel (his wife) did not go with him. Four or five days after his return to Baltimore, following a telephone conversation with Barney Griffith (appellee’s brother), Dr. Woel “decided that * * * [he] was not going to go through with the deal any more.” On 20 June 1967 the Woels filed their bill of complaint seeking a declaration that the contract was null and void and an order requiring the return of the deposit.

Judge Raine, relying entirely on Harrison v. Harrison, 160 Md. 378 (1931), held that since the contract was illegal and the parties "in pari delicto ” they would “be left in the same position in which they * * * [had] placed themselves.” That the contract was executory only appears to be conceded. On only two prior occasions have we been asked to resolve questions arising out of contracts made on a Sunday. In Rickards v. Rickards, 98 Md. 136 (1903), Dr. Rickards sold and delivered his wife’s horse to Nelson Rickards. The entire transaction was completed on Sunday.

A few days later Mrs. Rick ⁴⁵³ ards replevied the horse. In reversing the judgment of replevin, Chief Judge McSherry, for the Court, said: “No executory contract of sale made upon Sunday can be enforced. All parties agree to that proposition. But an executed contract though made on Sunday cannot be avoided merely because it was entered into on a dies non.

A contract entered into on Sunday is a contract prohibited by the law; * * 1 d. at 140. Judge McSherry went on to quote, with approval, from the opinion of Chief Justice Parker, in Inhabitants of Worcester v. Eaton, 11 Mass. 368 (1814): “ '* * * in all acts which are unlawful on account of their immorality or because they are hostile to public policy, there the parties to the act are in pari delicto and potior est conditio defendentis.’ ” Id. at 141. In December 1966, in Patton v. Graves, 244 Md. 528 , after concluding that what was said in Rickards “was, and still is, a correct statement of the law,” we reversed the decree of specific performance, holding that a contract to sell real estate, made on Sunday, is unenforceable. The concluding sentence of the Court’s opinion is as follows : “If, as a result of this decision, the Legislature should conclude that the public welfare requires Sunday real estate transactions to be no longer proscribed, it has the power and the means to effectuate its conclusion.” Id. at 537.

The General Assembly’s reaction was prompt. Code, Art. 27, § 534F (1968 Cum. Supp.) as enacted by Chapter 196 of the Laws of Maryland (1967) is as follows: “No contracts hereafter entered into and executed by and between the parties thereto on Sunday shall be subject to the prohibitions and penalties elsewhere contained in this subheading.” We are not persuaded that the contract of sale under consideration here was immoral or that it was hostile to public ⁴⁵⁴ policy and, if our position is sound, then the parties can hardly be said to be in pari delicto since there is really no delictum. It must, of course, be conceded, as Judge McSherry said, that a Sunday contract, in March 1967, was still “prohibited by the law.” But many acts prohibited by law are not immoral.

Morality is certainly not involved in backing a motor vehicle into a space controlled by a parking meter, yet to do so is a violation of the law in many localities. See, e.g., Baltimore City Code, Art. 31, § 196 (1966). Assuming a certain comparability it might be said that the operation of slot machines on Sunday is more nearly immoral than the making of a contract to sell real estate, yet the Legislature made lawful on Sunday in Anne Arundel County not only the operation of slot machines but a number of other activities as well. Code, Art. 27, § 509 (1967 Repl.

Vol.); McGowan v. Maryland, 366 U. S. 420 (1961), Moreover, it ought to be noted that neither the appellants nor the appellees intended to violate the law. They seem to have been under the impression that counsel had obviated that possibility by using 20 March as the date of the contract instead of 19 March. Nor can the making of the contract be reckoned as hostile to public policy when it is pointed out, as we did in Patton , that the Legislature has exempted from the operation of the Sunday laws “the activities of one or more special interests, ranging anywhere from the showing of motion pictures to the operation of bowling alleys and swimming pools.” Moreover, as earlier noted, the Legislature moved quickly after our decision in Patton . On 20 January, the third day of the 1967 session and two weeks after the mandate in Patton was issued, Delegate Docter introduced House Bill No. 40 providing for the exemption from the Sunday laws of “all real estate contracts.” (Emphasis added.) An amendment by the Judiciary Committee broadened the exemption to all contracts.

House Bill No. 40, as amended, became Chapter 196 and was finally passed on 23 March. It was signed by the Governor on 14 April 1967. It would be captious, we think, to regard this contract as hostile to public policy when, on the very day it was made, the arbiters of public policy were about ready to declare that any contract made on Sunday may be in accord with public policy. The question then boils down to this—shall the Woels be de ⁴⁵⁵ nied recovery of their $3,500 deposit money merely because the contract of sale is “prohibited by the law?” In the early case of Maryland Hosp. v. Foreman, 29 Md. 524 (1868), our predecessors affirmed a judgment for the recovery of money paid to a corporation pursuant to an ultra vires contract.

Chief Judge Bartol said, for the Court: “Is he entitled to recover back the money paid under it, or does the principle in pari delicto apply ? “If a contract be illegal in itself, or is in violation of some statute, or against public morals, courts of justice will not aid to enforce it, for the court will not contribute the means of infringing the law. Merrick v. Trustees, etc., 8 Gill, 72 ; Bayne v. Suit, 1 Md. 86. Such a contract, while it remains executory, may, in some cases, be disaffirmed by either party, and the money paid upon it recovered back. But, after it has been executed, if it appear that the parties stand strictly in pari delicto, it is too late for either to disaffirm or rescind it, and the parties are left without remedy against each other. 1 Story’s Eq.

Jur., sec. 298, 2 Parsons on Contracts, 252, 253; Sedwick v. Sedwick, 6 Gill, 39 .” (Emphasis added.) Id. at 531. A judgment for the recovery of money paid upon a contract for an illegal purpose was affirmed in Harrington v. Boschenski, 140 Md. 24 (1922). The factual details provide us with a wry sort of comedy. Early in the days of national prohibition (1920) Gerecht, a police magistrate, telephoned Boschenski whose business concerned near-beer.

Mrs. Boschenski answered and was told by Gerecht that he had something important to tell her husband. She told him her husband was drunk and quite likely would remain so for some time. On the day following she herself went to the police station to see Gerecht. He told her Boschenski could buy some whiskey if he wanted it.

She asked “how can you get whiskey; it is against the law.” He satisfied her on this point and advised her that the whiskey would be delivered “in government trucks.” She agreed to take 40 cases at $90 per case and on the following day she gave him $3,600. When Boschenski recovered from his bacchanal he went ⁴⁵⁶ to see Gerecht who sent him to Harrington. When Harrington suggested the illegality of the transaction Boschenski demanded the return of his money. Harrington said, “I ain’t got no money.” Judge Pattison, who delivered the opinion of the Court, said: “The contract here involved, which was for the purchase and sale of whiskey, is treated by the defendant as an illegal contract, and, as he contends, is one upon which there can be no recovery by the plaintiff of the money paid thereunder by him. “Assuming that the contract was an illegal one, or one the purpose or object of which was illegal, it was an executory contract, inasmuch as the defendant had not performed his part of it, and the plaintiff had the right at any time, before its execution by the defendants, to repudiate or disaffirm it, and to sue for and recover the consideration paid by him, not upon the contract, but independently of it. [Emphasis added.] “In 13 C.J. 501 it is said, ‘By the weight of authority, where money has been paid in consideration of an executory contract or purpose which is illegal, the party who has paid it may repudiate the agreement at any time before it is executed, and reclaim the money, for there is a locus poenitentiae.’ “In 6 R.C.L. 831, it is stated that ‘it has been declared that a party who pays money on an illegal contract cannot recover it in a suit in which he insists on the existing validity of the contract, but to do so he must, before it is fully executed, rescind it, or do some act which, in law, is equivalent to rescission.

The underlying reason of the rule permitting a recovery when the contract is still merely executory is the encouragement of the abandonment of illegal contracts and to prevent a violation of the law. The rule