Page:Federal Reporter, 1st Series, Volume 1.djvu/761

 A. & P. TEL. CO. V. V. P. BT. 00. T53 �court, as far as possible, to place them in statu qm. It bas been held that even in cases at common law a contract ultra vires, made between a corporation and another person, and under wbich the corporation bas received value, wMch it re- tains, will be so far enforced as to estop the corporation from refusing payment on the ground of its own want of power. Bradley v. Bullard, 55 111, 417. �And in the case of Thomas y. R. Co. (supreme court U. S.) already quoted from at lengtb, Mr. Justice Miller, upon tbis point, says: "Tbere can be no question tbat, in many in- stances, where an inralid contract, ^bicb the. party to it migbt bave avoided or refused to perform, bas been fully per- formed on botb sides, whereby money bas been paid or prop- erty cbanged bands, the courts bave refused to sustain an action for the recovery of the property or the money so trans- ferred. And in regard to corporations the rule bas been well laid down by Chief Justice Comstock, in Parish v. Wheeler, 22 New York, 404, that the executed dealings of corporations must be allowed to stand for and against botb parties when the plainest rules of good faith require it. But what is sought in the case before us is the enforcement of the unexecuted part of tbis agreement. So far as it bas been executed, namely, the four or five years of action under it, the accounts bave been adjusted, and eacb party bas received what he was entitled to by its terms." �The present case, like the New Jersey case in which these remarks were made, is one on which the contract bas been executed in part, but it differs from that case in one impor- tant particular. In the New Jersey case the court say that, "so far as it [the contract in question] bas been executed, namely, the four or five years of action under it, the accounts bave been adjusted and eack party has received what he was entitled to by its terms." �If that case bad been in equity, and it bad appeared that the railroad company bad received in advance the full con- sideration for the whole term of the lease, which it retained> while asking to be relieved from the contract, I bave no doubt �v.l,no.lO— 48 ��� �