Chadwick v. Stokes (162 F.2d 132, 1947)

BIGGS, Circuit Judge.

The suit at bar is one for specific performance of a contract made on a Sunday for the sale of real estate situated in Pennsylvania. A motion to dismiss was granted at the conclusion of the plaintiffs’ evidence on the ground that since the contract was entered into on a Sunday, it was void ab initio under the Pennsylvania Sunday law. See Act of June 24, 1939, P.L. 872, § 699.4, 18 P.S.Pa. § 4699.4. The inferences to be taken from the evidence therefore must be those most favorable to the plaintiffs. We will state only those facts which we deem necessary for the disposition of the appeal.

The plaintiffs, the Chadwicks, are husband P.nd wife. They have three children, age ten, five and three years respectively. On August 1, 1946, Mr. Chadwick, then an officer in the United Slates Army, received orders to leave Atlanta, Georgia and to report not later than August 5, 1946, to Fort Dix for separation from the service, lie went immediately to Philadelphia and assisted his wife in looking for a home. On Saturday, August 3, the Chadwicks found a property in Lansdownc which they deemed suitable. The defendants James R. Stokes, Jr., and Russell P. Stokes, were the owners of the premises. The do feud-ants, Amelia E. Stokes and Eva B. Stokes, respectively the wives of the defendants named in the preceding sentence, had rights of dower therein. All of the terms o£ {he sale were agreed upon between the plaintiffs and the defendants by 9:30 P. M. on Saturday evening. A telephone call was then made to the defendants’ real estate broker and he was asked to draw an agreement of sale. The broker suggested that the agreement be drawn not then but at 9:00 A.M. the following day, viz., Sunday, August 4, 1946. On Sunday a written agreement of sale was drawn and was entered into by the parties. By its terms the defendants agreed to sell and the plaintiffs agreed to buy the premises for $10,500. A $200 check dated August 5, was drawn by the plaintiffs to the order of the defendants’ broker and was delivered to him. The plaintiffs stated that the premises were “uniquely valuable” to them because situated in a neighborhood where they had lived before and because of the extreme scarcity of houses, the plaintiffs having no home in which to live.

The present Pennsylvania Sunday law, reenacted in 1939, is almost a verbatim copy of Section 1 of the original Act of April 22, 1794, 18 P.S. § 1991. It provides:

“Whoever does or performs any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday (works of necessity and charity only excepted), or uses or practices any game, hunting, shooting, sport or diversion whatsoever on the same day not authorized by law, shall, upon conviction thereof in a summary proceeding, be sentenced to pay a fine of four dollars ($4), for the use of the Commonwealth, or, in default of the payment thereof, shall suffer six (6) days’ imprisonment.

“Nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, lodging-houses, inns and other houses of entertainment for the use of sojourners, travellers or strangers, or to hinder watermen from landing their passengers, or ferrymen from carrying over the water travellers, or persons removing with their families on the Lord’s day, commonly called Sunday, nor to the delivery of milk or the necessaries of life, before nine of the clock in the forenoon, nor after five of the clock in the afternoon of the same day.”

The complaint in the .suit at bai alleges diversity of citizenship and jurisdictional amount. The contract of course was to be executed in Pennsylvania. It de