#### Lippert, Respondent, vs. Garrick Theater Company, Appellant.

*December*7, *1910*—

January *10, 1911.*

*Sunday: Contracts.*

A contract, made on a secular day, providing that plaintiff should enter defendant’s employ on a subsequent secular day, was not void under sec. 4595, Stats. (1898), merely because plaintiff’s-salary was to commence on the first day of the next month, which was Sunday, where there was no provision that any work should be done on that day and both parties performed the agreement for a long time thereafter.

Appeal from a judgment of tbe circuit court for Milwaukee county: OeeeN T. Williaks, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment awarding tbe plaintiff $735.16 on account of alleged breach of contract on tbe part of tbe defendant by discharging tbe plaintiff before tbe term of services under a contract bad expired. Tbe contract was-made on tbe 31st day of July, 1907, and provided in effect that tbe defendant employed tbe plaintiff as its buffet and bar manager for the season commencing September 1, 1907, for a period of forty weeks at a salary of $100 per month, and allowed him tbe use of tbe floor bar during tbe period that tbe defendant’s theater was closed, without cost.for rent; that tbe plaintiff was to enter tbe employ of tbe defendant August 26, 1907, and receive no pay until September 1, 1907; and further provided that tbe duty of tbe plaintiff should be to supervise all bars, and be was to receive bis pay weekly. Tbe agreement was conditioned that plaintiff’s work should be reasonably satisfactory.

Tbe complaint sets up this contract and that plaintiff entered the employ of tbe defendant under it on tbe 26th day of August, 1907, on tbe terms and conditions of the contract, and duly performed bis duties thereunder until tbe 30th day of November, 1907, at which time tbe defendant discharged *414bim without cause and for tbe purpose of defrauding bim out of tbe benefits and profits of said contract, and bas since refused to be bound by said contract, and refused to permit plaintiff to continue in said employment, and bas denied bim tbe use of tbe floor bar or other privileges under tbe contract, all of which were very valuable, by reason of which plaintiff sustained $2,000 damages.

Tbe answer admits tbe contract as alleged, and that on tbe 26th day of August, 1907, plaintiff entered upon tbe performance of bis duties under such contract, and continued until November 30, 19 07, and alleges that be was at that time justly discharged by defendant on account of gross incompetency and insubordinateness. Tbe jury returned tbe following verdict:

“(1) Did tbe defendant, *Garrick Theatre Company,*acting in good faith, adopt a resolution on tbe 13th day of November, 1907, discharging the plaintiff on the 30th of November because bis work as ‘supervisor of all bars’ in tbe Gayety Theatre was not ‘reasonably satisfactory to tbe management’ thereof? *A.*No.

“(2) Was tbe defendant justified in discharging tbe plaintiff because bis work was not ‘reasonably satisfactory to tbe management’ of tbe defendant company as ‘supervisor of all tbe bars’ in tbe Gayety Theatre ? *A.*No.

“(3) If you answer tbe foregoing questions ‘Yes,’ you need not answer this question; otherwise answer this question: What was tbe reasonable value of tbe use of tbe floor bar in tbe Gayety Theatre from June 6, 1907, to August 20, 1907 ? *A.*$187.

“(4) If you answer questions 1 and 2 ‘Yes,’ you need not answer this question; otherwise answer this question: At what sum do you assess the plaintiff’s damages ? *A.*For tbe value of tbe use of tbe bar, $187; for tbe value of services, $573.”

Motions were made by defendant for judgment notwithstanding tbe verdict, to change tbe answers in tbe verdict, to set tbe verdict aside and grant a new trial, all of which were *415denied, and judgment rendered for tbe plaintiff on tbe verdict, from wbicb tbis appeal was taken.

Eor tbe appellant there were briefs by *Fred A. Landech*•and *Robert R.*Freeman> and oral argument by *Mr. Landeck.*

*W. B. Rubin*and Wl *G. Zabel,*for tbe respondent.

KeRWIN, J.

There is no bill of exceptions in tbis case, and tbe only question here for review is whether the pleadings support tbe judgment. Tbis involves consideration of tbe contract set up in tbe complaint as tbe basis of tbe plaintiff’s cause of action. It is insisted by appellant that tbis contract is void under sec. 4595, Stats. (1898), wbicb prohibits certain labor, business, or work on tbe first day of tbe week, ■commonly called Sunday. Tbe contract was executed on July 31, 1907, and provided that tbe term of service should -commence on tbe 26th day of August, 1907, and that tbe salary commence on September 1, 1907, and continue for a period of forty weeks, payable weekly. Tbe plaintiff entered upon tbe performance of tbe contract August 26th and ■continued to work under it until November 30, 1907, and was paid for all services up to that date. Neither tbe 31st of July nor tbe 26th of August, 1907, was Sunday, but September 1st was, and it is insisted that because tbe salary, by tbe terms of tbe contract, was to commence on Sunday tbe contract was void. There are several reasons why tbis contention cannot be sustained. In tbe first place tbe contract does not provide that any services shall be performed on September 1st. It provides that tbe salary shall be paid weekly and ■shall commence September 1st. A construction cannot be placed upon a contract wbicb will render it void and unlawful when capable of one wbicb will render it lawful and valid. 'Moreover, tbis court has held that although some acts be done under a contract on Sunday it is not void if it be carried out ■on a secular day. *King v. Graef,*136 Wis. 548, 117 N. W. 1058. And even a Sunday contract may by a subsequent *416promise to carry it out, or by acts done in performance of it, be validated. *Melchoir v. McCarty,*31 Wis. 252; *Williams v. Lane,*87 Wis. 152, 58 N. W. 77; *Hopkins v. Stefan,*77 Wis. 45, 45 N. W. 676; *Schmidt v. Thomas,*75 Wis. 529, 44 N. W. 771; *Sentinel Co. v. A. D. Meiselbach M. W. Co., ante,*p. 224, 128 N. W. 861. There is no question here of claim for services performed on Sunday. The' contract was made on a secular day and performed by both parties until long after September 1st, namely, November 30 th. There is no doubt, under the decisions of this court and the facts established by the pleadings, but that the contract was valid, and therefore the judgment below cannot be disturbed.

*By the Court.*— The judgment of the court below is affirmed.