| Md. | Dec 2, 1892
delivered the opinion of the Court.
The appellant was the treasurer of the appellee, which is a social and literary club of Baltimore City, incorporated under the general incorporation laws of this State. As such treasurer he received from time to time, on Sundays and week days, money belonging to the club.
He made a statement in writing of the moneys so received by him, and also of the amount expended by him, showing a balance in his hands due the club of something less than two hundred dollars. He refused, however, to pay this balance, claiming that he was responsib
The propositions announced in the defendant’s prayers are that, if the money in question was the result of work done or sales made on Sunday, in violation of our Sunday law, or if such work or business was illegal and ultra vires, or if the charter of the appellee was fraudulently obtained, or the' election of its officers was illegal, then under none of these circumstances can the appellant recover.
The instructions granted at the instance of the plaintiff were to the effect that, if the defendant on any other day than Sunday promised to pay the money in question to the plaintiff, it was immaterial whether the defendant obtained possession of the money on Sunday or other days, or whether it was the result of work done or sales made on Sunday. Assuming that the funds of the club came into the hands of the officer, the appellant, contrary to law, and as the result of business done in violation of the Sunday law and of the charter of the appellee, we do not think the defendant should be allowed to escape liability in this case, upon any such pretexts. What the rights of the State may be in proceedings taken by it to forfeit the charter, or how far the appellee may be proceeded against for the alleged flagrant violations of law, are questions which cannot now be properly considered.
The appellant was a member of the appellee club, and, according to the theory on which his prayers are based, he participated in the violations of law and the
Neither the alleged fraud of the appellee in obtaining its charter, Pattison vs. Albany Build. and Loan Association, 63 Ga., 313, the illegal election of its officers, Mech. Nat. Bank of Newark vs. Burnet Mfg. Co., 32 N. J. Eq., 236, nor the alleged violations of its charter by the appellee, United German Bank, &c. vs. Katz, 57 Md., 128, constitute a valid defence for the appellant under the circumstances of this case.
In the case last mentioned we held that one who had a note discounted hy the Bank in question in violation of its charter would not he allowed to rely upon the illegality of the act in order to escape the payment of the note. And it was there said such conduct of the corporation “might he good ground for proceeding to forfeit the charter * * * * hut in a case like this it is not available as a defence.”
The laws which the State has enacted to secure the due and orderly observance of Sunday, must, of course, he enforced, and so construed as to give them full effect, hut not at the expense of all the rules of common honesty.
In some of the States (see Revised Statutes of Maine, chapter 82, section 16,) it is provided that “no person who receives a valuable consideration for a contract, express or implied, made on the Lord’s day, shall defend any action upon such contract on the ground that it was so made, until he restores such consideration.” The provisions of this statute are in accordance with the views of this Court in United German Bank vs. Katz, supra, namely, that it would he inequitable to allow one who has had the benefit of an illegal contract to plead that illegality, and at the same time to hold on to the benefit he derived therefrom.
It would seem, also, that the instructions given the jury are free from objection. As we have said, they are based upon the proposition that, even if the original transaction or contract by which the appellant obtained the money in question is in violation of the Sunday law and the charter of the appellee, yet that the promise made by the appellant on a week day to pay said money to the appellee, in connection with the other evidence in the cause, is sufficient to support this action, and entitle the appellee to recover. The suit here is not upon a contract made on Sunday, but it is an action of assumpsit on a special promise made by the appellant to the appellee on the 30th of October, 1891, and on other week days, to pay to it á sum of money, which, as matter of fact, he admits came into his hands as an officer of the appellee. Under the instructions of the Court below recovery was had upon this special promise, and not upon a contract or promise made on Sunday. In other words, the case of the appellee was complete when it offered in evidence its charter, proof of the account stated by the appellant, showing the balance in his hands, and that he had promised as above mentioned to pay the same. Evidence of the supposed illegal contract or illegal transactions must, therefore, have come, if at all, from the appellant, as matter of defence; but, as we have already said, he will not be allowed to set up any .such defence in this case. He is estopped.
Judgment affirmed, with costs.