Rickards v. Rickards

McSherry, C. J., delivered the opinion of the Court. On Sunday, December 28th, 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 ¹⁴⁰ the appellee, to the appellant, J. Nelson Rickards, and forthwith delivered the horse to the appellant. Two days afterward the appellee sued out a writ of replevin to recover the horse. The record was removed on the suggestion and affi davit 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. The controlling question passed upon below and now brought here by the pending appeal is this: Waá 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 tjhe 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 and that she may therefore repudiate the transaction and reclaim the horse. No executory contract of sale made upon Sunday can be enforced.

All parties agree to that proposition. But an executed contract though made on Sunday cannot be avoided merely because it was entered into on a dies non. A contract entered into on Sunday is a contract prohibited by the law; but as said by Lord Chief Justice Wilmot in Collins v. Blantern, 2 Wilson 341 : “Whosoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again;—you shall not have a right of action when you come into a Court of Justice in this unclean manner to recover it back.” And so in the case of the Inhabitants of Worcester v. Eaton, 11 Mass. 368 decided in 1814, in an able and elaborate opinion delivered by Chief Justice ¹⁴¹ 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 de licto; 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 to 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. * * * 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 defendentisSee also Kelley s. Cosgrove, 83 Iowa 229 ; s. c. 17 L. R. A. 779. 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 authority to make it.

And here lies the 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 secular or business day; but the argument is that a term must be read into the agent’s power whereby implicitly he was prohibited from doing any illegal act; and as the sale on Sunday was an illegal act, it was an act beyond the scope of his authority and therefore not binding on the appellee. This argument begs the question—a sale or barter of the horse was confessedly within the delegated authority of the agent, and the method he pursued in performing what he was empowered to ¹⁴² perform cannot make the thing he did, a thing he had no power to do.

This is not an inquiry into a criminal liability. 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 obligations 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 & Co., L. R.

(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 offence 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 Matthew stated (at p. 86), “A little confusion has been