This is an action brought to recover the assessments which the plaintiff, F. G. Simmons, 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 case seem to bring it within the principles decided in Strauss v. Life Association,126 N.C. 971, and on rehearing ante 465. It seems that the plaintiffs on 10 November, 1895, commenced an action based on the alleged breach of the original contract, which terminated in a compromise agreement dated 31 October, (470) 1896. What might have been the proper construction of that compromise, or its legal effect, is not before us, as it seems to have been repudiated by both parties. This being so, the parties 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" the same instrument in the same
breath. Such being the case, we see no error in the judgment of the Court below.
Affirmed.
Cited: Makeley v. Legion of Honor, 133 N.C. 370; Johnson v. Reformers,135 N.C. 387; Green v. Ins. Co., 139 N.C. 313; Brockenbrough v. Ins.Co., 145 N.C. 355.
(471)