delivered the opinion of the court, January 2d 1877.
There are twenty specifications of error in this case. They raise, however, but two substantial questions, viz.: 1. Was the contract upon which the plaintiffs were allowed to recover, ultra vires ¶ 2. Was such contract found by the jury upon sufficient evidence ? Neither proposition presents a question of serious difficulty. It does not appear to have occurred to the defendants below that the contract of July 26th 1871 was ultra vires until it became ajrparent that by their subsequent modification of it they had made a bad bargain. They then attempted to repudiate the modification and fall back upon the original agreement of July 26th. Yet the illegality, if any existed, was to be found in the original contract; assuming that to be legal, the modification of it was equally so. We do not think the defendants are in a position to defend upon the ground of the illegality of the contract. There were mutual covenants and mutual advantages. The defendants had enjoyed the advantages, such as they were. To the extent of the demand in-this suit the contract was executed, and to say now that it is ultra vires comes with an exceedingly bad grace from the defendants. It may be that having shown performance on their part they would have a right to rescind the contract as to future transactions upon the ground of its illegality. Upon that point we express no ojnnion. But there is no rule of law which permits them to retain both the benefits and the price. So far as the contract of these parties may be said to be against public policy and transgressive of their respective charters there is ample remedy. There is a mode by which the Commonwealth may call a corporation to account where it violates its charter or the rights of the people. The rights of the Commonwealth are in no manner involved in this suit.
In regard to the second proposition we think there was sufficient evidence to justify the court in submitting to the jury the question of the subsequent modification of the contract of July 26. Nor can we say that their finding was not warranted by the evidence. While some of the specifications of error in regard to the admission of evidence are not entirely free from doubt, we perceive no sufficient error to justify us in reversing upon this ground, especially in view of the fact that the defendants acted upon the modification, and settled for one month upon that basis.
Judgment affirmed.