| Ark. | Jul 12, 1915
(after stating the facts). Although the bid of the bank was illegal, as held by this court in Casey v. Independence County, 109 Ark. 11" date_filed="1913-07-07" court="Ark." case_name="Casey v. Independence County">109 Ark. 11, nevertheless it had the effect of causing the county court to name the bank as depository, and the bank acting in the capacity of county depository proceeded to execute the bond, and the funds of the county were deposited with it and it had the use of these funds for a period of six months. This bid and bond were in the nature of a .contract with the county to pay it the interest specified in the bid in the manner prescribed by law for county depositories during the time it held the funds. The judgment of the circuit court affirming the judgment of the county court designating the bank as depository, although appealed from and finally, reversed by this court, nevertheless went into effect for a period of six months. During this time the bank, under this judgment, ¡held and had the use of the county’s funds!, and it and its bondsmen must pay the interest they agreed to pay according to their bid and bond for the use of this money. To hold otherwise would be to permit them to profit by their own illegal act, not intentional, to be sure, but nevertheless such would be the effect in law. The bid of appellee bank was not immoral and no public policy forbade it. This bid was declared illegal simply because it was not in compliance with the statute. 'The bid and bond, as set up in the allegations of the complaint, in other words, constitute in effect an agreement between the bank and the county whereby the bank was. to pay the county the sum of 4% Per oent. for the money that the county should deposit with it on daily balances to be paid quarterly.
The principle of law controlling here may be stated in the language of Mr. Justice Swayne, speaking for the Supreme Court of the United States in Union National Bank v. Matthews, 25 U. S. (L. C. P. Ed.) 188-190: “A party who has had the benefit of an agreement can not be' permitted in an action founded upon it to question its'va-lidáty. It would ¡be in tbe highest degree inequitable and unjust to permit a defendant to repudiate a contract the benefit of which he retains. ’ ’
While this is not strictly a contract inter partes, it is the same in legal effect and the same principle applies thereto.
Tihe allegations of the complaint, for the purpose of this demurrer, must be taken as true, and the facts stated therein constitute a cause of action. The court, therefore erred in sustaining the appellees’ demurrer thereto, and for this error the judgment is reversed and the cause remanded with directions to overrule the demurrer and for further proceedings according to law.