Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/304

 313.] TIIK LAW OF PRIVATE CORPORATIONS. [CHAP. VII. choice to reject or accept, no promise to pay or account for the same can be implied. 1 § 313. The rules already stated are not always nor altogether applicable to restitutions on the repudiation of con- uitm vires tracts which, besides being ultra vires, are also un- con tracts. •. ~ -, lawful. A party to a contract, the making of which, though pro- hibited by law, is not malum in se, may, while it remains ex- ecutory, rescind it and recover monev advanced by him thereon to the other party who has performed no part thereof. Per- mitting the plaintiff to recover back is not carrying out the illegal transaction, but the effect is to put everybody in the situation they were in before the illegal contract was deter- mined on. 2 Thus, where a deposit was made in a bank, and the depositor received a book containing the cashier's certificate that the money was to remain on deposit a certain length of time, it was held that such stipulation was void as amounting to a contract on the part of the bank for the payment of money at a future day certain, a contract prohibited by statute. But the court held that, though no action could be maintained by the depositor on the stipulation, still he could recover back the money before the expiration of the time for which it was to remain on deposit, and that, too, without any previous demand on the bank. 3 It will be noticed that in this case, though the express contract was beyond the cashier's authority, yet receiv- ing the money on deposit was not, and so the money was actu- ally applied to the purposes of the bank by its agent acting within his powers. Sometimes a harsher doctrine is applied. Undoubtedly the right of a party to an illegal contract to have it rescinded rests on public policy rather than on any rights of the party him- self. And so a corporation, without regard to the fact that it 1 In re Worcester Corn Exch. Co., 3 De G. M. & G. 180 ; Zottman v. San Francisco, 20 Cal. 96 ; Murphy v. City of Louisville, 9 Bush (Ky. ), 189 ; In re Kent Benefit B'ld'g Soc, 1 Dr. & Sm. 417. 2 Spring Co. v. Knowlton, 103 U. S. 49 ; Oneida B'k v. Ontario B'k, 21 N. Y. 490; White v. Franklin 284 B'k, 22 Pick. 181 ; Dill v. Wareham, 7 Mete. (Mass. ) 438 ; Whitney v. Peay, 24 Ark. 22 ; Foulke v. San Diego, etc., R. R. Co., 51 Cal. 365; Philadelphia Loan Co. ». Towner, 13 Conn. 249. Compare Brooks v. Mar- tin, 2 Wall. 70. 3 White v. Franklin B'k, 22 Pick. 181.