Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/301

 PART III.] ACTS BEYOND THE CORPORATE POWERS. [§ 310. the action was brought by the lessee to cancel the ultra vires lease, and the court held that relief would be granted upon its returning the property or paying the value of what it could not return. 1 The court said, however, with reference to a line of cases which it cited approvingly : " They are substantially unanimous in expressing the view that in no way and through no channels, directly or indirectly, will courts allow an action to be maintained for the recovery of property delivered under an illegal contract where, in order to maintain such recovery, it is necessary to have recourse to that contract. The right of recovery must rest upon a disaffirmance of the contract, and it is permitted only because of the desire of courts to do justice as far as possible to the party who has made payment or de- livered property under a void agreement, and which in justice he ought to recover. But courts will not in such endeavor permit any recovery which will weaken the rule founded upon public policy already noticed.'- 3 Unquestionably in such instances many courts would dis- tinguish between contracts merely ultra vires and those which are also illegal. In regard to the former the general principle is stated by Mr. Brice as follows : 3 " But though a corporation can- not be sued, any more than any other citizen, directly upon a contract or analogous transaction which does not bind it, yet if it sets up this defence it must restore to the other party what it has obtained from him. It may repudiate the transaction if it chooses, but if so it must repudiate altogether — it cannot reprobate and approbate — it cannot reject and yet keep what in another form it has rejected." i Clear as this statement seems, it requires qualification in this respect : that the corporation may repudiate the contract without rendering up the benefits which through the contract have accrued to the corporate prop- erty, when such benefits have become amalgamated with the corporate property and cannot be rendered up without infring- ing the rights of persons who have never assented to the con- 1 Pullman Palace Car Co. v. Central Trans. Co., 171 U. S. 138. The opinion discusses the way to arrive at the value. See, also, Aldrich v. Chemical Nat. Bk., 176 U. S. 618. 2 171 U. S. 151. 3 Ultra Vires, 2d Eng. ed. p. 769. 4 See Miinville v. Belden M'g Co., 5 McCrary, 301; Panhandle Nat. Bk. v. Emery, 78 Tex. 498. 281