delivered the opinion of the Court.
Plaintiff’s employed defendant to haul a cotton conditioner machine by truck over the public highways from Dallas to Spade, Texas. Defendant negligently damaged the machine in unloading it at destination. The defendant held a “specialized motor carrier” permit from the Roalroad Commission authorizing him to transport farm machinery and certain other goods over the highways in certain parts of West Texas, but did not have a permit to haul gin machinery. It was unlawful for defendant to haul the machine without the permit. Vernon’s Ann. Civ. Stat., Art. 911b; Vernon’s Ann. P. C., Art. 1690. The plaintiffs set out the *63 contract and sought judgment against defendant for the damages to the machine. The defendant alleged the illegality of the contract and sought to avoid liability on account thereof.
The Cоurt of Civil Appeals has certified to this Court the question as to whether, under the circumstances, the illegality of the transaction precluded a recovery by plaintiffs against the defendant for the damages to thе machine occasioned by the negligence of the defendant in handling the same.
The certificate from the Court of Civil Appeals does not disclose whether plaintiffs did or did not know that the defendant did not havе a certificate from the Railroad Commission which would permit him to haul the machinery. However, the transcript has been sent up with the certificate, and the findings of the trial court embodied therein contain a finding thаt plaintiffs did not know that the defendant did not have such a permit. Originally, the statute authorized the Court of Civil Appeals to send up the record with a certified question only where there was a dissenting opinion. Rev. Stats., Art. 1853; Rule 464, Texas Rules of Civil Procedure. Consequently, it was held that in the ordinary certified question, where there was no dissenting оpinion, the Supreme Court could not look to the record for information not contained in the certificate. Pohle v. Robertson,
The rule that a court will not entеrtain a suit growing out of an illegal transaction is not always applicable where the parties arе not in pari delicto. 17 C. J. S. 660;
“Thus, where a person sues for services rendеred another in an occupation which is illegal, unless the employer is duly licensed to carry it on, which he is not, such person may recover unless he knew that the employer had no license, for while he is bound to know that the employer must have a license to make the business legal, his mistake as to his having such license is a mistake of fact and not of law.”
In De Marais v. Stricker,
“While it is true that the Oregon City Funeral Home was not a licensed funeral director when plaintiff was in its employment, nevertheless plaintiff testified that he was unaware of the fact that his employers were not so licensed. Recovery from an employer may be had for services rеndered in an occupation which is illegal because a license is required and none has been рurcured unless the employee knew that the employer had no license, for, while the employeе is bound to know that to make the business legal the employer must have a license, the employee’s mistake in thinking that his employer had such a license, when in fact the employer had none, is a mistake of fact and not of law. 13 C. J. subject Contract, p. 516, sec. 474(2), note 65, citing Roys v. Johnson,
We think the above rule is applicable in this case. Here the transaction was not necessarily an illegal one. The defendant could have had a permit to haul the gin machinery, and if he had had such a permit as plaintiff thought he had, the transaсtion would have been perfectly legal. The plaintiffs had no intention of violating the law. They had no knowlеdge of the facts which rendered the contract illegal, whereas the defendant knew full well that he would have to violate the law if he executed the contract. It would be in derogation and not in furtherance of the public policy of this State to permit the defendant to set up his own illegal conduct to defеat his obligation to plaintiffs, who were ignorant to the fact rendering the transaction illegal.
*65 Under the cirсumstances the illegality of the transaction does not preclude a recovery by plaintiffs against the defendant for the damages in question. We answer the question in the negative.
Opinion delivered May 16, 1945.
Rehearing overruled July 11, 1945.