Simmons v. Mutual Reserve Fund Life Ass'n

Douglas, J. This is an action brought to recover the assessments which the plaintiff, E. G. Simmlons, has paid the defendant on a contract of insurance which the plaintiffs allege has been unlawfully cancelled -by the defendant. Viewed in the light of the original contract, the facts of this dase seem to bring it within the prinaipO.es decided in Strauss v. Life Association, 126 N. C., 971, and on rehearing at this term. It seems'that the plaintiffs on November 10, 1895, commenced an action based on the alleged breach of the original con *470 tract) which termimalted in 'a compromise agreement darted October 31, 1896. What might have been the proper construction of that compromise, or its legal effect, is not before ns, as it seems to have been repudiated by both parties. This being so, the panties are relegated to their former contract. Even if the second contract were otherwise in force, it has been admittedly violated by the defendant, who can not be allowed to “approbate and reprobate” tbe same instrument in 'the Siam© breath. Such being the case, we see no error in the judgment of the Court below. Affirmed.