Before BIGGS and KALODNER, Circuit Judges, and McGRANERY, District 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 and wife. They have three children, age ten, five and three years respectively. On August 1, 1946, Mr. Chadwick, then an officer in the United States Army, received orders to leave Atlanta, Georgia and to report not later than August 5, 1946, to Fort Dix for separation from the service. He went immediately to Philadelphia and assisted his wife in looking for a home. On Saturday, August 3, the Chadwicks found a property in Lansdowne which they deemed suitable. The defendants James R. Stokes, Jr., and Russell P. Stokes, were the owners of the premises. The defendants, 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 of the 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 bar alleges diversity of citizenship and jurisdictional amount. The contract of course was to be executed in Pennsylvania. It deals with land within that Commonwealth. The law of Pennsylvania governs. The parties have been assiduous in citing many Sunday law cases not only from Pennsylvania but also from numerous other jurisdictions. The plaintiffs have cited the Sunday statutes of some eighteen States. Some are similar in substance to that of Pennsylvania. Some are quite dissimilar. It would be a futile thing to deal with each Act in detail. It is sufficient to say that most, if not all of them, prohibit worldly employment on the Sabbath but except works of necessity. We think that the courts of Pennsylvania should and would give weight to the decisions of the courts of other States in determining the issues of the case at bar in view of its unusual circumstances.
The court below concluded*fn1 that the decision of Judge Nelson McVicar, then a Judge of the Court of Common Pleas in and for Allegheny County, in Weinstein v. Buehner, 75 Pittsb.Leg.J. 124, and that of the Supreme Court of Pennsylvania in Cook v. Forker, 193 Pa. 461, 44 A. 560, 74 Am.St.Rep. 699, were decisive. An examination of these authorities convinces us that they are not conclusive in the case at bar. In the Cook decision it appears that a promissory note was given on Sunday when necessity did not require it. In the Buehner case there was no necessity that the contract for the sale of the house be entered into on Sunday. Moreover, an inference could be drawn from the facts as stated in the Buehner case that the house was to be used to entertain boarders; at least it does not appear from the opinion that the house was to be used only as a home by the purchaser.
The defendants contend that the key to the interpretation of the exception of works of necessity in the statute lies in the public welfare and not in individual convenience. We are unable to discern this principle in most of the judicial pronouncements. The decisions which follow will illustrate the difficulty which is encountered. We have in fact found no Pennsylvania case in which the act performed was a necessity if we define that word literally.*fn2
In Commonwealth v. Fuller, 4 Pa.Co.Ct.R. 429, 18 Phila. 610, the selling of railroad tickets to persons about to attend a camp meeting was held to be a necessity. It was held that a railroad is a necessary means of travel and that camp meetings are a form of religious worship. The Pennsylvania statute, however, literally interpreted, does not exempt travel for any purpose unless it be a necessity.
In Commonwealth v. Shipley, 35 Pa.Co.Ct.R. 132, 18 Pa.Dist.R. 133, the offense charged was the fixing of a railroad switch on Sunday. It was pointed out that Sunday was the day when travel was at a minimum and hence the switch could be fixed without danger to life and public property. The occasion, however, seems to have been one of convenience rather than of necessity.
In Commonwealth v. Minichello, 8 Pa.Dist.R. & C. 198, the defendant sold gasoline on Sunday and the court concluded that it was necessary for persons to travel by automobile and that the sale of gasoline was an incident of such travel. It was not shown that any person to whom Minichello sold gasoline had to travel on Sunday.
In Commonwealth v. Nesbit, 34 Pa. 398, the defendant was a servant who drove his master to church.Here the decision was based upon the proposition that attending church services on Sunday was proper and that the work of a servant was incident to his master's traveling to church. There ...