Freund, Cafiero and Artaserse. The opinion of the court was delivered by Artaserse, J.s.c. (temporarily assigned).
This is an appeal from a judgment of the Superior Court, Chancery Division, in favor of the defendants in an action by plaintiff for specific performance of a contract for the sale of real property.
The pretrial order discloses that the single issue projected for trial to be whether or not the contract involved is void because of its negotiation and completion on Sunday. At the trial, however, the complaint was amended to allege that the contract was executed in the State of New York.
The facts are uncomplicated and virtually undisputed. The record discloses that on Sunday, February 12, 1956, a contract was partially prepared in New Jersey for the sale of real property situate here with plaintiff as purchaser and defendants as vendors. At the defendants' home in New York City the contract was completed by adding the consideration and a more specific description, and duly executed by both parties on Sunday, February 12, 1956, although it was dated February 13, 1956. Immediately after the parties executed the contract the plaintiff gave to the defendants a check for $100 representing the down payment as called for, which check was likewise dated February 13, 1956. At the oral argument it was conceded that the said contract was duly executed and delivered in New York City on Sunday, February 12, 1956. On the following day, February 13, the contract was acknowledged by plaintiff in New Jersey before an attorney-at-law of this State and duly
recorded in the Bergen County Clerk's Office. However, no acknowledgment by defendants, or any other act which might be deemed ratification of the contract on a secular day, appears of record. See Roberts v. Remlinger , 105 N.J.L. 427 (E. & A. 1929); Spiccia v. Paterson Silk Throwing Co., Inc. , 127 N.J.L. 509 (Sup. Ct. 1941), affirmed 129 N.J.L. 100 (E. & A. 1942); and Heckel v. Burtchaell , 7 N.J. Super. 203 (App. Div. 1950), overruling the law of our earlier cases; Reeves v. Butcher , 31 N.J.L. 224 (Sup. Ct. 1865); Gennert v. Wuestner , 53 N.J. Eq. 302 (Ch. 1895), that a contract made on Sunday is absolutely void and incapable of ratification.
From a judgment in favor of the defendants and requiring the plaintiffs to remove the contract in question from the record in the Bergen County Clerk's Office, plaintiff appeals.
The thrust of plaintiff's argument before this court is that since the contract was executed in New York, the law of that State, and not New Jersey law, governs its validity and under New York law this contract is valid and enforceable.
Preliminarily, it is well to state that under the law of this State a contract made on Sunday is void under the provisions of N.J.S. 2 A:171-1 which prohibit worldly employment or business on the Christian Sabbath. This is applicable to a contract for the sale of land as well as others. Riddle v. Keller , 61 N.J. Eq. 513 (Ch. 1901); Bowen v. Pursel , 100 N.J. Eq. 319 (E. & A. 1926); Greene v. Birkmeyer , 8 N.J. Super. 217 (App. Div. 1950). It is said that the mere carrying on of negotiation on Sunday will not invalidate a contract completed on a secular day, Berry v. O'Neill , 92 N.J.L. 63 (Sup. Ct. 1918). But here the agreement was executed and part of the purchase price paid on Sunday, nothing remained to be done to render it complete. The subsequent acknowledgment by plaintiff was clearly not essential to its completion. Thus, under the facts herein, if New Jersey law is applicable the contract is void. Compare Burr v. Nivison , 75 N.J. Eq. 241 (E. & A. 1909), where delivery of the land sale contract for the assent
of one party was a prerequisite to its completion; County Engineering Co. v. West , 88 N.J. Eq. 109 (Ch. 1917), where by the contract terms ratification was necessary; and National City Bank of New York v. Borowicz , 40 N.J. Super. 414 (App. Div. 1956), involving a promissory note which required delivery to become effective as a contract.
However, as plaintiff contends, it is fundamental that the validity of a contract is determined by the law of the place of contracting. Colozzi v. Bevko, Inc. , 17 N.J. 194, 202 (1955); Restatement, Conflict of Laws (1934), sec. 332, p. 408; 2 Wharton, Conflict of Laws (3 d ed.), sec. 401, p. 862. Beale has this to say:
"* * * the validity of a contract concerning land, which is to be sharply distinguished from the validity of the conveyance of land (which is governed by the law of the situs of the land) is determined by the law of the place of contracting, although there is some authority to the contrary. Similarly the obligation and effect of a contract relating to land on the rights (other than rights in the land) and duties of the parties to it is governed by the law of the place of contracting, and is to be equally sharply distinguished from the effect of the contract on the title to the land (such as ...