It is against the policy of the law to permit a party to authorize another to do an unlawful act.

Roddy v. Finnegan, 43 Md. 501; Story, Agency, 11; Reinhard, Agency, § 186; Mechem, Agency, §§ 19, 20; 1 Am. & Eng. Enc. Law, 2d ed. p. 971.

432; 14 Am. & Eng. Enc. Law, 2d ed. p. | but, as said by Lord Chief Justice Wilmot 1079; Anderson Law Dict. 490; The Eliza in Collins v. Blantern, 2 Wils. 341: "Whobeth & Jane, 2 Mason, 407, Fed. Cas. No. ever is a party to an unlawful contract, if 4,355; Weld v. Maxwell, 4 Blatchf. 136, Fed. | he hath once paid the money stipulated to Cas. No. 17,374; Bartholomew v. Freeman, be paid in pursuance thereof, he shall not L. R. 3 C. P. Div. 316; Richmond Hill S. S. have the help of a court to fetch it back Co. v. Trinity House [1896] 1 Q. B. 493; again. You shall not have a right of action Gower v. Gower, 2 Eden, 201; State v. Ward, when you come into a court of justice in 49 Conn. 442; Weston v. McDowell, 20 Mich. this unclean manner to recover it back." 357. And so, in the case of Worcester v. Eaton, 11 Mass. 368, decided in 1814, in an able and elaborate opinion delivered by Chief Justice Parker, it was said: "There have been some cases in England which look as if, in all instances where a party has paid money upon an illegal transaction, he may recover it back again in an action for money had and received. But it is now unquestionably settled there that an action for money so paid cannot be maintained where the parties are really in pari delicto; and, upon looking into all the cases upon the subject, it will appear that a distinction is maintained between those cases in which one of the parties has by an illegal act taken an advantage of and oppressed the other, and those in which it is not possible distinguish between the parties as to the degree of their criminality. Thus, where usury has been paid, it is considered that the lender has availed himself of the distress of the borrower, and has violated the law to extort from him more than the lawful rate of interest. In this case an action for money had and received will lie for the excess.

McSherry, Ch. J., delivered the opinion

of the court:

On Sunday, December 28, 1902, Dr. Harry N. Rickards, acting as agent for his wife, Mollie E. Rickards, the appellee, traded a certain horse belonging to, or alleged to be owned by, the appellee to the appellant, J. Nelson Rickards, and forthwith delivered the horse to the appellant. Two days afterwards the appellee sued out a writ of replevin to recover the horse. The record was removed, on the suggestion and affidavit of the appellee, from the circuit court for Caroline county to the circuit court for Kent county, where the case was finally tried. A verdict and judgment were entered in favor of Mrs. Rickards, and J. Nelson Rickards has appealed.

But that in all acts which are unlawful on account of their immorality, or because they are hostile to public policy, there the parties to the act are in pari delicto, and potior est conditio defendentis.” See also Kelley v. Cosgrove, 83 Iowa, 229, 17 L. R. A. 779, 48 N. W. 979.

It is obvious, then, that the executed contract entered into between the appellee's agent and the appellant is binding on the appellee, even though it was consummated on Sunday, unless the fact that it was made on Sunday, and consequently was unlawful, of itself, took it out of the scope of the agent's And here lies the authority to make it. stress of the case. The agent's authority was general and unrestricted. It was not limited to the sale or barter of the horse on a sec

The controlling question passed upon below, and now brought here by the pending appeal, is this: Was the transaction-the barter or trade of the horse as made by the appellee's agent, confessedly consummated and fully executed on Sunday-a transaction which did not bind the appellee, because made on Sunday? That question is raised by the prayers presented for instructions to the jury. The agency of the appellee's husband is not disputed. The barter or trade is not denied. The delivery of the horse in accordance with and at the time the transaction was entered into is conceded. The point of contention is that, as a contract of sale or barter or trade made on a Sunday is invalid, the principal, Mrs. Rickards, cannot be bound by the illegal act of her agent, ular or business day; but the argument is and that she may therefore repudiate the that a term must be read into the agent's transaction and reclaim the horse. No ex- powers whereby implicitly he was prohibecutory contract of sale made upon Sunday ited from doing any illegal act, and, as the can be enforced. All parties agree to that sale on Sunday was an illegal act, it was proposition. But an executed contract, an act beyond the scope of his authority, and though made on Sunday, cannot be avoided therefore not binding on the appellee. This merely because it was entered into on a argument begs the question. A sale or bardies non. A contract entered into on Sun-ter of the horse was confessedly within the day is a contract prohibited by the law, delegated authority of the agent, and the

the liability of the master is not determined upon any such restricted interpretation of the authority and duty of the servant. If the servant be acting at the time in the course of his master's service, and for his master's benefit, within the scope of his employment, then his act, though wrongful or negligent, is to be treated as that of the master, although no express command or privity of the master be shown."

It dos not need any further citations of adjudged cases to support the proposition that the principal cannot repudiate an executed contract merely because the agent, in the method followed or adopted in making it, has violated the law prohibiting a contract from being entered into on Sunday, if the contract itself, when made, and after being executed, was one which it was within the scope of the agent's authority to make for and in behalf of his principal. With this proposition established, we may now turn to the prayers which were presented by both of the parties to the cause.

method he pursued in performing what he | "In one sense, where there is no express was empowered to perform cannot make the command by the master, all wrongful acts thing he did a thing he had no power to do. done by the servant may be said to be beThis is not an inquiry into a criminal lia-yond the scope of the authority given; but bility. The mere fact that an agent, in the course of exercising a delegated authority, himself violates a prohibitive statute, does not liberate or discharge the principal from the obligation of the contract, if the contract be one within the scope of his authority. This doctrine is well illustrated in a recent case decided by the English court of appeal. In Hamlyn v. Houston [1903] 1 K. B. 81, the master of the rolls said: "It is too well established by the authorities to be now disputed that a principal may be liable for the fraud or other illegal act committed by his agent within the general scope of the authority given to him, and even the fact that the act of the agent is criminal does not necessarily take it out of the scope of his authority. If the act done by the agent is within the general scope of the authority given to him, it matters not, for the present purpose, that it was directly contrary to the instructions of his principal, or even that it may have been an offense against society itself. The test is that which is applied to this case by the learned judge: Was it within the scope of the authority given to Houston to obtain this information by legitimate means? If so, it was within the scope of his authority, for the present purpose, to obtain it by illegitimate means, and the defendants are liable." And in the same case Justice Mathew stated, at page 86: "A little confusion has been introduced into this case by the reference made to the criminal law. It is not suggested that Houston's partner would be liable criminally. The question is only one of civil liability. The rule of law applicable is perfectly plain. The question is whether the action of Houston was within the scope of his authority for the purpose of making the firm liable. I think the jury were entirely warranted in finding that Houston was authorized to obtain information as to the contracts and tenders made by competing firms by legitimate means. He did obtain such informa-pudiate the transaction, and to reclaim postion by illegitimate means. It being within the scope of his authority to procure the information, it is immaterial, for the present purpose, whether the acts which he committed in order to procure it were fraudulent, or even criminal, or not, and his partner is responsible for those acts." This court, speaking through former Chief Justice Alvey, in Evans v. Davidson, 53 Md. 249, 36 Am. Rep. 400, announced substantially the same doctrine, in these words:

The appellee asked five instructions, and the appellant asked six. Of the five requested by the appellee, the court granted the third and fifth as offered, and gave an instruction of its own in place of the first and second, and rejected the fourth, which is not found in the record. The appellant's first prayer was conceded; his fourth and fifth were granted; his second, third, and sixth were rejected; and in lieu of the third and sixth the trial court substituted two of its own. The rulings thus made, except as respects the rejection of the appellee's fourth prayer, are the errors alleged on this appeal.

The court's substitute for the appellee's first and second prayers, as well as the appellee's fifth prayer, broadly lay down the assertion, as a legal principle, that, as the barter of the horse was made and completed on Sunday, the appeilee was entitled to re

session of the property. The modification made by the trial court of the appellant's third prayer incorporates the same theory, though the prayer, as presented originally, in effect, asks the court to inform the jury that the barter was binding on the appellee, even though made on Sunday, provided the transaction was within the scope of the agent's authority, and was fully executed. From what we have heretofore said, it obviously follows that there was error in

Baltimore City et al., Appts.,

MARYLAND

1.

บ.

TELEPHONE &

TELEGRAPH COMPANY of Baltimore City.

( . . . . . . . . Md.........)

Answer, and not demurrer, is the proper pleading for setting up nonexistence of a contract fixing the rates claimed, and that defendant is not bound to furnish the service demanded at the rates claimed, in a suit to restrain a telephone company from extorting rates for services in excess of those specified in the ordinance under which it acquired the right to use the city streets.

2. A definition of telephone service as

granting the substitute for the appellee's | CHARLES SIMON'S SONS COMPANY of first and second prayers, and in granting her fifth prayer, and in modifying the appellant's third prayer. The appellee's third prayer merely asserts an abstract proposition. It is not perceived how it could have caused any injury. The appellant's second prayer was rejected, but no injury was done him, because the same proposition, in somewhat different words, is covered by the fourth prayer, which was granted. The sixth prayer, as offered, told the jury that it was for them to decide, from all the facts and circumstances, whether the horse was purchased by the appellee with her own money, through her husband, as agent, or whether it was purchased by him for himself, and her name was used merely as a colorable device to hinder, delay, or defraud his subsisting or subsequent creditors. The prayer thus framed was rejected, but the court amended it by inserting the words "with her knowledge and consent," so that the proposition it announced was this: the horse was in fact bought by the appellee's husband with his own money, and the title thereto was put in the appellee's name with a view to delay, defeat, or defraud the husband's creditors, the appellee could still recover possession of the horse in replevin, unless she knew of, or consented to, the fraud perpetrated by her husband. The qualification added by the court was erroneous. The appellee was not entitled to recover if in point of fact the horse belonged to her husband. If the husband had fraudulently put the title in her name, her want of knowledge of the fraud gave her no better title than if she had been fully aware of the intent imputed to her husband. Her situa

If

ordinary grounded wire service, in a statute providing maximum rates for such service, has no effect in determining the meaning of the word in a contract subsequently made between a municipal corporation and the telephone company for service to be furnished to citizens of the municipality. 3. In determining the kind of telephone which a corporation undertook to furnish in consideration of the right to use conduits in the highways of a municipal corporation, the court is entitled to know the circumstances and conditions surrounding the parties to the contract at the time it was made.

4. The duty to furnish service at specified rates may be imposed by a municipal corporation having statutory authority to regulate the use of its streets for telephone wires as a condit: on to the use of such streets by a telephone company.

5. A telephone company which accepts

the conditions as to rates to be charged by it, imposed by a municipal corporation as a condition to its use of the streets for its conduits, cannot complain that the rates are not reasonable.

tion was not that of a bona fide purchaser 6. The residents of a municipal cor

for value, without notice or knowledge of the vendor's fraudulent design. The whole question, so far as the sixth prayer was concerned, was limited to the inquiry as to her (the appellee's) ownership of the horse; and whether she was innocent of, or an accomplice in, the fraud of her husband, was wholly immaterial, if the horse belonged to him, and he merely put the title in her to hinder or delay his creditors.

For the errors we have indicated, viz., the granting of the appellee's fifth prayer, and the granting of the court's substitute for the appellee's first and second prayers, and for the rejection of the appellant's third and sixth prayers, and the granting of third and sixth prayers as modified by the court, the judgment must be reversed, and a new trial will be awarded. It is accordingly so ordered.

Judgment reversed, with costs above and below, and new trial awarded.

poration may enforce for their own benefit conditions as to rates to be charged by a telephone company, imposed by a municipal ordinance granting the use of the streets and accepted by the company, where the rates were expressly imposed for their benefit.

7. A bill by several patrons of a telephone company having distinct and separate contracts for service, to enforce the company's duty under a municipal ordinance as to rates for service, will not be dismissed for multifariousness, although the facts alleged in connection with the various contracts are somewhat variant, where there is a common interest in enforcing the duty, and no difficulty or embarrassment will be created in decreeing the relief which the bill seeks.

(February 24, 1904.)

NOTE. For another case in this series as to

power of city to fix telephone rates, see St. Louis v. Bell Teleph. Co. 2 L. R. A. 278.

As to power of legislature to fix telephone rates, see cases in note to Winchester & L Turnp. Road Co. v. Croxton, 33 L. R. A. 181.

APPEAL by plaintiffs from a decree of the of Baltimore, and the appellants as citizens

The contract was made for their benefit. Seigman v. Hoffacker, 57 Md. 321; Owings v. Owings, 1 Harr. & G. 484; Dutton v. Pool, 1 Vent. 318; Martyn v. Hind, 2 Cowp. 443; Schermerhorn v. Vanderheyden, 1 Johns. 139; Small v. Schaefer, 24 Md. 143; Eastern | 19. Advertising Co. v. McGaw, 89 Md. 72, 42 Atl. 923.

The contract was entered into by the mayor and city council, as agents of the citizens

Ind. 250, 55 Am. Rep. 201, 5 N. E. 178; Chi- | state to the mayor and city council of Balticago Teleph. Co. v. Illinois Mfrs. Asso. 106 more to regulate the compensation to be Ill. App. 54. paid public service corporations for their services. This power is a legislative function, and cannot be exercised by a municipality without express legislative authority.

Nebraska Teleph. Co. v. State, 55 Neb. forfeiture, but that right reposes in him 627, 45 L.. R. A. 113, 76 N. W. 171.

The remedy for the breach of a condition subsequent is confined to the resumption of The power has never been delegated by the the estate by the donor and his heirs.