#### Jacobson, Appellant, vs. Bentzler, Respondent.

*February 26*

March *20, 1906.*

*Checks: Delivery: Acceptance: Sunday contracts: Ratification: Pleading: Public policy.*

1. The acceptance of a check on a hank is in the nature of a conditional payment, which becomes complete when accepted, and, when the' amount due thereon is actually paid, such payment relates hack to the time of its delivery.

2. Plaintiff loaned defendant $1,000, the transaction taking place on Sunday, and consisted of delivery and receipt of a check for that amount and of an agreement expressing the conditions of the loan. Thereafter the defendant cashed the check and had the agreement acknowledged and left for record, with directions to the register to mail it to plaintiff. *Held,,*that the collection of the *money on*the check, and the acknowledging, recording, and transmission of the agreement, were mere incidents to the trans*567action constituting tbe malting of the loan, and did not relieve the transaction from the operation and condemnation of the law respecting contracts executed on Sunday.

3. In such case the obligation for repayment arose out of what took place on Sunday, and that agreement is void and not susceptible of ratification.

4. In an action to enforce such loan the fact that such invalidity was not asserted in the answer does not preclude defendant from insisting that the agreement cannot be enforced, since, on the ground of public policy, all the parties to the agreement are deemed equally guilty and are denied the usual remedies of the law for its enforcement.

Appeal from a judgment of tbe circuit court for Milwaus kee county: OeeeN T. Williams, Circuit Judge.

*Affirmed:*

Plaintiff alleges tbat be loaned and advanced defendant tbe sum of $1,000 and tbat defendant agreed to repay tbe sum on demand. He claims tbat demand bas been made and tbat no part of tbe sum bas been paid. Defendant denies tbat a loan was ever made, and alleges tbat be conveyed certain real estate to tbe plaintiff in consideration of tbe $1,000. He further alleges tbat the deed was executed and delivered upon an express agreement in writing tbat upon repayment of tbe sum, and provided be bad paid tbe taxes levied on tbe property, be might demand a reconveyance, but that in case of failure to pay such taxes then tbe contract was to be null and void. He alleges that be bas not paid tbe taxes and tbat tbe right to demand a reconveyance no longer exists, and be asserts tbat plaintiff bas not offered to reeonvey. Tbe evidence on tbe trial shows tbat all of tbe transactions involved took place on Sunday, including the delivery of tbe check for $1,000, tbe signing and delivery of tbe written agreement, and tbe delivery of tbe deed. Tbe only act not positively shown to have taken place on Sunday refers to tbe acknowledgment and tbe recording of tbe deed, and this is left in uncertainty by tbe statements of tbe plaintiff. At tbe conclusion of plaintiff’s evidence defendant’s motion for a nonsuit *568was granted by tbe court. A motion for a new trial was denied, and judgment for costs was rendered for defendant. Tbis is an appeal from such, judgment.

*J. A. Fgg&n,*for the appellant.

Eor the respondent there was a brief by *McFlroy, Fsch-weiler & Wetzler,*and oral argument by *8. F. Wetzler.*

SiebecKER, J.

The evidence of the plaintiff shows that t]íe transactions on which relief is sought took place between the parties on Sunday. It is undisputed that plaintiff on this day delivered to and that defendant received from him a check for $1,000; that the written agreements expressing the conditions of the loan were executed and delivered on Sunday ; and that the deed, which had been signed by the grantor, was handed to plaintiff on the same day. The only part of the transaction which occurred thereafter was that the defendant had the deed acknowledged and left for record, with directions to the register of deeds to mail it to the plaintiff. The time of payment of the check and the acknowledgment and recording of the deed are relied on as showing that the alleged loan was not made on Sunday: Firstly, upon the ground that the alleged loan to defendant was not made until the check had been paid at the bank; and, secondly, it is claimed that the loan was not made until the deed was acknowledged, recorded, and transmitted by mail to plaintiff, and that these acts were essential to the delivery of the deed and were necessary steps to give legal efficacy to the transaction. As to the first point it seems clear that acceptance of a check on a bank is in the nature of a conditional payment, which becomes complete when accepted and when the amount due on it is actually paid, and that such payment relates back to the time of its delivery. 22 Am. & Eng. Ency. of Law (2d ed.) 5.6:9; 2 Daniel, Neg. Inst. (5th ed.) § 1623. Under the circumstances shown, the fact that defendant received the money on the check after Sunday does not relieve the transaction from *569tbe operation of tbe Sunday law. Tbe same is true witb respect to tbe acknowledgment, tbe recording, and tbe .transmission of tbe deed. These were mere incidents to tbe transaction wbicb constituted tbe making of tbe loan. Tbe alleged obligation for tbe repayment of tbe money loaned arises out of wbat took place on Sunday.'

Plaintiff is not relieved from difficulty by tbe claim that tbe acts done after Sunday were in tbe nature of a ratification •of that wbicb preceded, for it bas been beld that tbe loaning ■of money on Sunday is within tbe meaning of tbe statute prohibiting tbe doing of business on tbe first day of tbe week. This makes tbe contract void and not susceptible of ratification. *Troewert v. Decker,*51 Wis. 46, 8 N. W. 26; *Brown v. Gates,*120 Wis. 349, *91*N. W. 221, 98 N. W. 205, and cases cited; *Vinz v. Beatty,*61 Wis. 645, 21 N. W. 787; *Sherry v. Madler,*123 Wis. 621, 101 N. W. 1095. Tbe fact that defendant in bis answer did not assert tbe invalidity of tbe •contract upon tbe grounds now advanced does not preclude him from insisting that the agreement cannot be enforced. Upon tbe ground of public policy, all tbe parties to such an .agreement are deemed equally guilty and are denied tbe usual .remedies of tbe law for its enforcement. *Pearson v. Kelly,*122 Wis. 660, 100 N. W. 1064.

Tbe judgment dismissing tbe action was properly awarded.

*By the Court.*— Judgment affirmed..