§444


[      ■■  ■       tion.1     So,  where  a  member  of  a  municipal  corporation
ed  witii  anothei  party  to  take  a  contract  from  the  corporation
for  the  execution  of  certain  works  in  his  name,  the  profits  whereof
to  be  divided  between  the  parties,  it  was  held  that  such  a  eon-
was  m  contravention  of  law,  and  the  court  of  chancery  refused
to  enforce  the  agreement  for  a  partnership.2     An  action  at  law  on  a
contract  for  the  sale  of  goods  by  a  trading  partnership,  of  which  a
member  is  also  a  member  of  the  municipal  council,  may,  where  the
contracl  is  cot  executed,  be  resisted  on  the  ground  that  one  of  the
plaintiffs  is  a  member  of  the  municipal  council.8     A  distinction  to
be  borne  in  mind    is  this:  if  the  contract  is  void  as  against  public
policy  or  is  ultra  vires  in  the  true  and  strict  sense  of  that  expres-
sion, there  can  be  uo  recovery  based  on  the  executory  provisions  of
the  contract  ;  but  if  it  has  been  executed  in  whole  or  in  part,  there
may  be  an  estoppel   or  other  ground   of  recovery  based  upon  what
been  done.     It  is  obvious,  however,  that  when  such  is  the  case  the
right  of  recovery  is  not  upon  the  contract,  but  upon  facts  and  cir-
cumstances independent  of  the  notion  that  the  contract  is  valid.4


1  Toronto  v.  Bowes,  1  Grant  (Canada),

Bins  v.  Swindle,  fi  Grant  (Canada),

nmmings  o  Saux,  30  La.  An.  2u7;
Doll  i    -  5  Ohio  St.  445.
■  iwn  v.  Lindsay,  35  Upper  Can.  Q.  B.
