1 Day v. Buggy Co., 1885, 57 Mich. 146; 23 N. W. 628; 58 Am. Rep. 352. And see Northwestern Union Packet Co. v. Shaw, 1875, 37 Wis. 655; 19 Am. Rep. 781.
2 Anglo-American Land, etc., Co. v. Lombard, 1904, 132 Fed. 721, 741; 68 C. C. A. 89, (Mo. law); Chewacla Lime Works v. Dismukes, 1889, 87 Ala. 344; 6 So. 122; 5 L. R. A. 100; First Nat. Bank v. Alexander, 1907, 152 Ala. 585; 44 So. 866; National Home Bldg. Assn. v. Home Savings Bank, 1899, 181 111. 35; 54 N. E. 619; 64 L. R. A. 399; 72 Am. St. Rep. 245; Davis v. Old Colony R. Co., 1881, 131 Mass. 258; 41 Am. Rep. 221, (cf. Slater Woolen Co. v. Lamb, 1887, 143 Mass. 420; 9 N. E. 823; Prescott Nat. Bank v. Butler, 1893, 157 Mass. 548; 32 N. E. 909); Norton v. Derby Nat. Bank, 1882, 61 N. H. 589; 60 Am. Rep. 334; Miller v. Insurance Co., 1893, 92 Tenn. 167; 21 S. W. 39; 20 L. R. A. 765; Metropolitan Stock Exch. v. Lyndonville Nat. Bank, 1904, 76 Vt. 303; 57 Atl. 101.
The Illinois courts make a distinction between acts not authorized by the charter and those within the charter powers but which are invalid through failure to comply with regulations, etc. A benefit conferred under the former cannot be recovered if the contract be ultra vires, while it may if it be one of the latter description. National Home, etc., Assn. v. Home Sav. Bank, supra; Wood v. Mystic Circle, 1904, 212 111. 532; 72 N. E. 783; Smith v. Bankers' Union of Chicago, 1908, 144 111. App. 384.
The Northwestern Union Packet Co. v. Shaw, 1875, 37 Wis. 655; 19 Am. Rep. 781: Action for breach of contract by which the plaintiff agreed to buy wheat from the defendant and paid $1000 to defendant on account thereof. Defense: that the contract was ultra'vires and consequently void. Lyon, J., after holding that the contract was ultra vires and that damages for its breach could not be recovered (p. 660) 1: " But the question remains whether the plaintiff is entitled to recover the $1000. . . . The cases have been carefully examined, and we think the rule may fairly be deduced from them, that when money has been paid upon an executory agreement, which is free from moral turpitude, and is not prohibited by positive law, but which is invalid by reason of the legal incapacity of a party thereto, otherwise capable of contracting, to enter into that particular agreement, or for want of compliance with some formal requirement of the law (as that the contract shall be in writing, and the like), the money so paid may, while the agreement remains executory, be recovered back by the party paying it, in an action for money had and received. ... A contract to buy wheat is an innocent one; no statute has prohibited it; and this particular agreement is invalid only by reason of the accident that the purchaser is a corporation instead of a natural person, and happens to lack authority to make this particular contract." 2
1 In later Wisconsin cases it was held that a corporation is estopped to set up the defense of ultra vires after receiving the benefit of full performance on the other side. See McElroy v. Minn. Percheron Horse Co., 1897, 96 Wis. 317; 71 N. W. 652; Bigelow v. Chicago, etc., R. Co., 1899, 104 Wis. 109; 80 N. W. 95.
2 See also Brown v. City of Atchison, 1888, 39 Kan. 37; 17 Pac. 465; 7 Am. St. Rep. 515; Morville v. Amer. Tract Society, 1877, 123 Mass. 129; 25 Am. Rep. 40; Norton v. Derby Nat. Bank, 1882, 61 N. H. 589; 60 Am. Rep. 334; Tenn. Ice Co. v. Raine, 1901, 107 Tenn. 151; 64 S. W. 29.
A few cases to the contrary may be found. In at least one case the recovery in quasi contract of money paid under an ultra vires contract of loan has been denied upon the ground that "a recovery under a common count in this case, would be an enforcement of a void contract, as. effectually as if it had been under a special count, setting forth the contract." 1 This is the same difficulty that has been felt by the English courts, and it has been considered in the discussion of the English cases (ante, Sec. 158). In another case it has been held that a manufacturing corporation could not recover the value of goods delivered to a railway company in part performance of an ultra vires contract to take part payment in stock of the railway company, because the benefit was conferred under a mistake of law.2 An attempt is made, in another chapter (ante, Sec. 35 et seq.), to show that ignorance or mistake of law ought not to bar a recovery in quasi contract. Fortunately, the fallacious maxim that every one is conclusively presumed to know the law has rarely been appealed to in cases arising out of ultra vires contracts, and it is to be hoped that the decision above referred to will not be followed.