Rickards v. Rickards

• Decision Date: 03 December 1903
• Citation: 56 A. 397,98 Md. 136
• Parties: RICKARDS v. RICKARDS.
• Court: Maryland Court of Appeals

56 A. 397

98 Md. 136

RICKARDS v. RICKARDS.

Court of Appeals of Maryland

December 3, 1903

Appeal from Circuit Court, Kent County; James A. Pearce and Edwin H Brown, Judges.

Action by Mollie E. Rickards against J. Nelson Rickards. Judgment for plaintiff, and defendant appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE JONES, and SCHMUCKER, JJ.

Richard D. Hynson, H.W. Vickers, and Albert Constable, for appellant.

Charles F. Harley, for appellee.

McSHERRY C.J.

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 afterward 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.

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, 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: "Whoever 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 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 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 potiorest conditio defendentis." See, also, Kelley v. Cosgrove, 83 Iowa, 229, 48 N.W. 979, 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 powers 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 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 obligation of the contract, if the contract be one within the scope of his authority. This doctrine is...