CONTRACT BY Telegraph, when COMPLETE: See Haas v. Myers, 53 Am. Rep. 634; Moulton v. Kershaw, 48 Id. 516, note 519; Calhoun v. Atchison, 96 Am. Dec. 299; Trevor v. Wood, 93 Id. 511, note 515, where this subject is discussed at length.

DALTON V. THURSTON.

[15 RHODE ISLAND, 418.]

TO MAKE PURCHASE FRAUDULENT, THERE MUST BE FRAUDULENT INTENT. The mere fact that a purchaser is deeply insolvent does not make his purchase invalid.

PURCHASE MADE BY ONE ACCUSTOMED TO CARRY ON HIS BUSINESS IN SLIPSHOD Way, and culpably ignorant of the true state of his affairs, although made a short time before executing an assignment for the benefit of his creditors, is not fraudulent, when there is nothing to show that the purchase was out of the usual course, or that it was made in anticipation of failure.

REPLEVIN. The opinion states the case.

Charles A. Wilson and Thomas A. Jenckes, for the plaintiffs. John D. Thurston, pro se ipso.

By Court, DURFEE, C. J. This is replevin for lumber valued at two thousand five hundred dollars. The writ was served August 6, 1884. The case is tried to the court on law and fact, jury trial being waived. The testimony shows that the defendant's assignor had carried on a lumber business in Wickford, R. I., for about nineteen years prior to July, 1884; that he had traded with the plaintiffs to some extent for about fifteen years; and that the lumber in suit was delivered to him by them early in June, 1884, on an order for it given by him at their solicitation the previous March. On July 17, 1884, he made a general assignment to the defendant for the benefit of his creditors. The immediate cause of his failure was his inability to meet the payment of two notes then falling due, in consequence of the refusal of a person with whom he had an arrangement for advances, from whom he had expected to borrow the money, to lend it. He testified: "I supposed I was all right, and that everything was going along smooth," until then. He also testified that he only kept a book of what he had sold, but not of what he bought or paid out, and that he did not know how much he owed until after the assignment. It appeared that in fact he owed, in addition to ten thousand dollars secured by mortgage of a part of his stock of lumber, something over twenty thousand dollars, and that to pay this

amount he had book-accounts which he considered worth a little more than twelve hundred dollars, and his lumber, which consisted of the portion under mortgage, the cargo replevied by the plaintiffs, a cargo worth about five hundred dollars, also replevied, and a small amount besides. He testified that he had had land to carry along, which he had got clear of by making sacrifices, and this had cramped him; but that he first knew that he should have to make an assignment the day he made it. The plaintiffs claim the right to recover the lumber purchased of them, on the ground that the purchase was fraudulent; but they have introduced no evidence of any misrepresentation or concealment by the purchaser, or which materially contradicts his testimony. They rely upon his testimony, showing that when he purchased of them he was deeply insolvent, to make out their case.

The mere fact that a purchaser is insolvent does not make his purchases invalid. Even the fact that he is deeply insolvent does not have that effect, unless he purchases with no intention or expectation of paying; for if there be no dishonest mind or purpose, there is no fraud. In Biggs v. Barry, 2 Curt. 259, the fraud alleged was, that the purchasers were deeply insolvent, and knew they were so when they made the purchases. On the trial, the jury were left to say whether the purchasers had any "reasonable expectation" of paying; but on motion for new trial, the court held that this was error. "This is not a question," said Judge Curtis, "of reasonable expectation, but of fraudulent purpose. It is not a question whether the grounds of their belief that they could and should pay were sound and rational, but whether they did so believe in point of fact." And so in Commonwealth v. Eastman, 1 Cush. 189, 221, 48 Am. Dec. 596, the court held that the test of reasonable expectation was too severe. The sanguine, hopeful mind, rashly confident or inconsiderate, disbelieves in failure, and for that very reason sometimes plucks success out of desperate circumstances. The law lets the insolvent keep his own counsels, and struggle with his embarrassments, so long as he has an honest hope of overcoming them. In Mitchell v. Worden, 20 Barb. 253, the court held that the law does not make it the duty of the buyer to disclose to the seller his pecuniary circumstances, even though they are desperate, and are known to him to be desperate, and even though there has been a long dealing between him and the seller, in which credit has been given and punctually met, so long as the buyer

continues to carry on his business. In In re Shackleton, L. R. -10 Ch. App. 446, it appeared that December 1st, S. committed an act of bankruptcy; that December 3d, a petition of adjudication was filed and served; and that December 5th, he purchased wool at auction, and was allowed to take the wool without paying for it, the seller supposing him to be solvent. December 14th he was adjudicated a bankrupt, and December 21st the seller, who had first heard of the bankruptcy proceedings on December 19th, gave notice that he rescinded the contract on the ground of fraud, and demanded to have the wool returned, but it was held that the trustee in bankruptcy was entitled to it. "It is true," say the court, "that a party must not make any misrepresentation, express or implied, and as at present advised, I think that Shackleton, when he went for the goods, must be taken to have made an implied representation that he intended to pay for them; and if it were thereby made out that at that time he did not intend to pay for them, I should consider that a case of fraudulent misrepresentation was shown. But I do not think this sufficiently made out." See also Mulliken v. Miller, 12 R. I. 296; Benjamin on Sales, sec. 440, note, and cases cited.

Of course, however, the fact that a purchaser is deeply insolvent when he purchases, and knows that he is so, is evidence from which, under some circumstances, it may be inferred that he had no intention or expectation of paying. The question in this case is, then, whether, under the circumstances disclosed, the inference ought to be drawn. We think not. The purchaser, according to his own testimony, carried on his business in a very slipshod way, and was culpably ignorant of the true state of his affairs; but this shows only heedlessness or incapacity. For anything that appears, he had always carried on his business in the same way, and for years had not had the means of paying his debts in full. Nothing shows that the purchase from the plaintiffs was out of the usual course, or that it was made in anticipation of failure. On the contrary, the failure, according to the testimony, was precipitated unexpectedly, as it might have been precipitated long before, by the refusal of the person on whom he was relying for pecuniary accommodation to lend him any longer. We find nothing to show that the purchase was made for any other purpose than the purpose of continuing the business as usual. We must, therefore, render judgment for the defendant. Judgment for defendant for return and restoration, and costs.

PURCHASE BY ONE INTENDING TO PAY AND HAVING REASONABLE Ex. PECTATIONS of being able to pay is not fraudulent, although he is at the time insolvent: Talcott v. Henderson, 27 Am. Rep. 501, note 504; Hall v. Naylor, 75 Am. Dec. 269, note 272, where other cases in that series are collected.

BROWN v. Browning.

[15 RHODE ISLAND, 422]

CONTRACT MADE IN CONNECTICUt after Sunset ON SUNDAY, being valid in that state, may be enforced in Rhode Island, although the law of the latter state prohibits business in one's ordinary calling during the whole day of Sunday. The enforcement of such a contract does not involve a breach of good morals.

ACTION on a promissory note. The facts are stated in the opinion.

Crafts and Tillinghast, for the plaintiff.

Thomas H. Peabody and Charles Perrin, for the defendant.

By Court, STINESS, J. The only question raised by the bill of exceptions is, whether a suit can be maintained in this state upon a contract made in Connecticut on Sunday after sunset. The statute of Connecticut, as proved in this case, prohibits secular business on Sunday between sunrise and sunset (Gen. Stats. Conn. 1875, p. 521), differing in this respect from our statute, which covers business of one's ordinary calling during the entire day. The plaintiff and defendant exchanged horses and wagons after sunset on Sunday, January 28, 1884, this being in the business of the plaintiff's ordinary calling, and the note in suit was given for "boot money' due to the plaintiff. The general rule is, that a contract which is valid where it is made is valid and may be enforced everywhere. Among the recognized exceptions to this rule, only two need to be considered in this case, viz., when the contract is against good morals, and when its enforcement would violate the law of the place of suit. We do not think the contract in this case falls within these exceptions. The contract was valid in Connecticut, where it was made, because it was not in violation of the law of that state. The making of the contract did not violate the law of this state, because it was

not done in this state. Neither does its enforcement conflict with any law of this state in regard to remedy. Was the making of the contract in Connecticut so far against good morals that it ought not to be enforced in this state? We do

not think that it was. The statute of 29 Charles II., c. 7, which has been generally followed in this country, prohibited work of one's ordinary calling on Sunday. The law of Connecticut prohibits travel, sport, and secular business between sunrise and sunset, and concerts and other public diversions in the evening. Whether sunset is fixed as a limit because the Hebrew sabbath, under the Mosaic law, ended at that time, or because such was the custom of the Puritan founders of the state, or because the hours between sunrise and sunset are those to which travel, sport, and secular business are chiefly and almost necessarily confined, we do not need to inquire. Evidently there may be a reasonable answer to an objection that the limit of the law is short of the limit required by good morals. Whatever may be claimed for the observance of the Lord's Day upon the ground of moral obligation, people who believe in keeping it very strictly would no doubt agree that the requirements of the Connecticut law have a tendency to promote, rather than obstruct, good morals. It does not follow, because our law covers all of the first day of the week, that the law of another state, which in one respect covers less, is contrary to good morals. We do not even require the observance of this day from all of our own citizens. Believers in the sabbatarian faith and Jewish religion are allowed to labor in their respective vocations on that day, and in certain places to open stores and carry on mechanical trades: Pub. Stats. R. I., c. 244, sec. 18.

The precise question before us has been passed upon, and so fully considered in Adams v. Gay, 19 Vt. 358, and Swann v. Swann, 21 Fed. Rep. 299, that a review of the grounds upon which the decisions rest is unnecessary. In both of these cases it was held that a contract made on Sunday, in a state where it was valid, was not against good morals, and could be enforced. The defendant relies on the case of Hayden v. Stone, 13 R. I. 106, where it is said "that a contract valid by the laws of one state cannot be enforced in another state unless such a contract made between its own citizens could be enforced there; or in other words, it depends on the lex fori." We do not think the court meant to make a rule as broad as this is claimed to be, and as, possibly, the language which is used may imply. The language must be applied to the case. There the suit was against a married woman, upon a note given by her and her husband in Massachusetts, where it was valid against both parties. Under our law a married woman