be well settled. Whenever money is paid in consideration of a contract, which contract is void, for want of power in one of the parties, or for any cause other than fraud or illegality in the contract, natural justice dictates that the money so paid shall be refunded; and there is no principle of law to prevent the operation of so equitable a rule. Here the deed, for which the money demanded in this action was part of the consideration, has been adjudged void;1 and in that action a promissory note, which was another part of the consideration of the same deed, has been avoided as nudum pactum, because the deed failed. No cause can be assigned why the money, which was actually paid, should remain in the hands of the party, who still holds the property for which this money was paid. The evidence ought, therefore, to have been admitted. The verdict must be set aside, and a new trial granted.2 NATIONAL GRANITE BANK v. TYNDALE, ADMINISTRATOR. SAME V. SAME. 176 MASS. 547.-1900. MORTON, J.-These two cases were argued together. The first is an action at law, and was before this court on the defendant's exceptions in 173 Mass. 517, 53 N. E. 1004, and it was there held that, the maker of the notes being a married woman, and the notes being made payable to the order of her husband, and indorsed by him, no action could be maintained on them against her. It comes before us now on exceptions by the plaintiff to a ruling by the presiding justice that upon the plaintiff's offer of proof an action could not be maintained against the administrator on the common counts for money lent, or for money had and received, and to a ruling that the plaintiff was not entitled to avail itself of the facts set up in the bill in equity in answer to the defense that the notes were void because made payable to the husband of defendant's intestate. The plaintiff offered to show that on December 29, 1891, it lent the defendant's intestate $15,000, and that at the same time the defendant's intestate gave the plaintiff three promissory notes for $15,000, payable to the order of her husband, and indorsed by him and by two other parties; that subsequently the defendant's intestate repudiated the notes on the ground that, having been made payable to her husband, and indorsed by him, they were void; and that the plaintiff had expressly refused to make the loan to the other 'In Fowler v. Shearer, 7 Mass. 14, 19, because it was the deed of a married woman. 2 But in Edwards v. Stacy, 113 Tenn. 257 (1904), a married woman, who repudiated a contract to purchase land, was denied recovery of payments made by her. parties, or on their individual credit, and made the loan only to defendant's intestate, and on her credit. We think that the ruling was erroneous. The offer was to show that the loan was made to defendant's intestate, and on her credit. This was consistent with the form of the note, of which she was the maker, and of which the other parties were, as between them and the bank the indorsers. Lewis v. Monahan, 173 Mass. 122, 53 N. E. 150. The fact that the note was declared void as to her did not destroy the original transaction, or avoid the debt created by the loan to her. Walker v. Mayo, 143 Mass. 42, 8 N. E. 873; Sutton v. Toomer, 7 Barn. & C. 416. If the other parties to the note had been co-makers with her, and the loan had been made to all of them, and the note had afterward been avoided by one of them, there would seem to be no doubt that the payee could have maintained an action against all of them for money had and received, or money lent. Leonard v. Society, 2 Cush. 462. In such a case, the note having been received on the faith that it was the valid note of all, the payee "would be warranted in treating it as a nullity, and resorting to the original contract." Leonard v. Society, supra. A fortiori, ought that to be the case when the liability of the other parties is, as here, collateral, and the action is brought against the maker alone. It is true that the plaintiff could have treated the note as valid as against the other parties, and that, if the plaintiff had sued and recovered against the last indorser, for instance, the husband might have been estopped in an action against him by a subsequent indorser to deny the validity of the note. Roby v. Phelan, 118 Mass. 541. But this action is not against the indorsers, and the counts that we are considering are not upon the note. The only use of the note which the plaintiff can make in relying on those counts is as evidence tending to show the terms on which the loan was made to defendant's intestate. It cannot recover upon the note and the common counts both, and, so far as it relies upon the common counts, it must be taken to rely upon the original contract with the maker of the note, and therefore to have elected to treat the note as a nullity. In such a case the plaintiff would have no ground of recovery against parties whose only liability as between them and the bank is that of indorsers on the note. The plaintiff contends, however, that it is entitled to be relieved in equity against the defense that the notes are void because made payable by the defendant's intestate to her husband. Its contention is, in substance, that the defendant's intestate, having received and kept the proceeds of the notes, is estopped in equity to deny their validity. But a party cannot be relieved in equity, we think, by reason of an estoppel any more than at law, from the effect of a positive rule of law. It is the rule of law that controls the conduct of parties, not the conduct of parties the rule of law. To hold otherwise would be to permit parties to set aside at their pleasure, with the aid of a court of equity, the rule of the common law which has been declared and recognized by the legislature and by this court that contracts between husband and wife are void. It is true that under some circumstances-as, for instance, in the case of trusts and contracts made in contemplation of marriage-contracts between husband and wife have been enforced in equity. See Frankel v. Frankel, 173 Mass. 214, 53 N. E. 398. But in this commonwealth, whatever may be the rule elsewhere, it never has been held that validity could be given to contracts between husband and wife, or in the analogous case of contracts made during minority, by means of the doctrine of equitable estoppel. See Fowle v. Torrey, 135 Mass. 87; Baker v. Stone, 136 Mass. 405; Woodward v. Spurr, 141 Mass. 283, 6 N. E. 521; Clark v. Patterson, 158 Mass. 388, 33 N. E. 589. Moreover, there is no allegation in the bill of any conduct or representation, fraudulent or otherwise, on the part of defendant's intestate, whereby the plaintiff was induced to take the notes and part with its money to her, and thus the very foundation of an estoppel, equitable or otherwise, fails. It is consistent with the allegations in the bill that the plaintiff knew that defendant's intestate was the wife of the payee, and acted in regard to the transaction on its own knowledge. It is manifest that the fact that the notes are void does not of itself entitle the plaintiff to relief. Equity does not undertake to afford relief in all cases where contracts are for any reason void in the form in which they have been entered into. The result is that in the action at law we think the exceptions should be sustained, and that in the bill in equity the decree sustaining the demurrer and dismissing the bill with costs should be affirmed. So ordered.1 SMOUT v. ILBERY. IO MEES. & W. (ExCH.) 1.-1842. DEBT for goods sold and delivered and on an account stated. ALDERSON, B.-This case was argued at the sittings after last Hilary term, before my Brothers GURNEY, ROLFE, and myself. The facts were shortly these. The defendant was the widow of a Mr. Ilbery, who died abroad; and the plaintiff, during the husband's lifetime, had supplied, and after his death had continued to supply, 1In Kneil v. Egleston, 140 Mass. 202 (1885), a wife had lent money to her husband. Plaintiff, the administratrix of the wife brought contract against the administrator of the husband in two counts,-one for money lent and one for money had and received. Recovery was denied on both counts; on the first, because of the lack of capacity of the wife to make a contract; on the second because, in the words of the court, "the inference that if one contract was repudiated another must be inferred could not arise where parties were not competent to make any contract." See the criticism of Kneil v. Egleston in Keener on Quasi-Contracts, 336-340. Recovery also denied in Muller v. Witte, 78 Conn 495 (1906). goods for the use of the family in England. The husband left England for China in March, 1839, and died on the 14th day of October, in that year. The news of his death first arrived in England on the 13th day of March, 1840; and the only question now remaining for the decision of the court is, whether the defendant was liable for the goods supplied after her husband's death, and before it was possible that the knowledge of that fact could be communicated to her. There was no doubt that such knowledge was communicated to her as soon as it was possible; and that the defendant had paid into court sufficient to cover all the goods supplied to the family by the plaintiff subsequently to the 13th of March, 1840. * * * * No one is liable upon the contract so made. Our judgment, on the present occasion, is founded on general principles applicable to all agents;1 but we think it right also to advert to the circumstance, that this is the case of a married woman, whose situation as a contracting party is of a peculiar nature. A person who contracts with an ordinary agent contracts with one capable of contracting in his own name; but he who contracts with a married woman knows that she is in general incapable of making any contract by which she is personally bound. The contract, therefore, made with the husband by her instrumentality, may be considered as equivalent to one made by the husband exclusively of the agent. Now, if a contract were made on the terms, that the agent, having a determinable authority, bound his principal, but expressly stipulated that he should not be personally liable himself, it seems quite reasonable that, in the absence of all mala fides on the part of the agent, no responsibility should rest upon him; and, as it appears to us, a married woman, situated as the defendant was in this case, may fairly be considered as an agent so stipulating for herself; and on this limited ground, therefore, we think she would not be liable under such circumstances as these.2 * * * * iv. Corporations. I. PRIVATE CORPORATIONS. BRUNSWICK GAS LIGHT CO. v. UNITED GAS CO. WALTON, J.-* * * In the present case, the Brunswick Gas Light Company undertook to lease all its property, and all its corporate rights and privileges, to the United Gas, Fuel & Light Company for twenty-five years. The latter company took possession of the works, and held them for seventeen and one-half months, making improvements upon them, and paying a portion of the agreed rent. It then abandoned the works, and possession was resumed by the lessors. 1 Disapproved in Yonge v. Toynbee, [1910] 1 K. B. 215, 233, holding agent liable. 2 This "limited ground" of the decision is not disapproved in Yonge v. Toynbee, supra, (p. 235). This is a suit by the lessors against the lessees for a breach of the covenants contained in the lease. It was contended in defense that the lease was illegal and void, and that no recovery could be had upon it. The presiding justice ruled, as a matter of law, that the plaintiff company and the defendant company had power to execute the lease, and that a recovery could be had for a breach of the covenants contained in it. We think the ruling was erroneous. No legislative authority for making the lease was shown, and, without such authority, we think the lease must be regarded as ultra vires, and void. The authorities bearing upon the question are not in entire harmony, but the weight of authority seems to us to be overwhelmingly in favor of this conclusion. See 2 Beach Corp., §§ 831856, inclusive, and the six pages of authorities pro and con cited under the section last cited. The cases are too numerous for citation here, and the few cases to which we have referred will furnish a key to all of them. But it is claimed that, inasmuch as the defendant company took and held possession of the plaintiff company's works by virtue of the lease, ultra vires is no defense to an action to recover the agreed rent. We do not doubt that the plaintiff company is entitled to recover a reasonable rent for the time the defendant company actually occupied the works; but do not think the amount can be measured by the ultra vires agreement. We think that in such cases the recovery must be had upon an implied agreement to pay a reasonable rent; and that, while the ultra vires agreement may be used as evidence, in the nature of an admission, of what is a reasonable rent, it cannot be allowed to govern or control the amount. It seems to us that it would be absurd to hold that the ultra vires lease is void, and at the same time hold that it governs the rights of the parties with respect to the amount of rent to be recovered. A void instrument governs nothing. We think the correct rule is the one stated by Mr. Justice Gray in a recent case in the United States Supreme Court. He said that a contract made by a corporation which is unlawful and void because beyond the scope of its corporate powers does not, by being carried into execution, become. lawful and valid; and that the proper remedy of the aggrieved. party is to disaffirm the contract, and sue to recover as on a quantum meruit the value of what the defendant has actually received the benefit of. Pittsburgh, C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 131 U. S. 371, 9 Sup. Ct. Rep. 770. We think this is the correct rule. 2 Beach Corp., § 423, and cases there cited. 1 Exceptions sustained. PETERS, C. J., and EMERY, FOSTER, and HASKELL, JJ., concurred.1 Accord, Slater Woollen Co. v. Lamb, 143 Mass. 420 (1887); Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24 (1890); Pullman's Car Co. v. Central Transportation Co., 171 U. S. 138 (1898). For a critical discussion of the doctrine of these United States Supreme Court cases, see "Rights under unauthorized corporate contracts." by George Wharton Pepper, 8 Yale Law Journ., 24-32. He concludes: "It is submitted that we shall never see our |