(after stating the facts.) The only question for us to determine is whether, under the facts as stated in the complaint, it was necessary for the plaintiff to return, or offer to return, the money received by him upon the compromise agreement, before commencing his action at law upon the policy of insurance.
The complaint alleges that one Miles, the agent of the company, claimed that the policy had-' been forfeited “in divers ways, and that plaintiff could not recover anything at law.” It also alleges that he stated to plaintiff that, if the offer of compromise was not accepted, “the defendant company would never pay him a cent, and would prosecute him to the bitter end.” These.allegations show that this was a disputed claim. The company, through its agent, asserted that the policy had been forfeited, but offered a compromise, which plaintiff accepted. He agreed to receive, and did receive, one hundred dollars in full settlement of his .claim against the company, and gave his receipt to that effect. He understood the nature and éffect of the compromise, and knew the contents of the instrument that he signed. Under these circumstances, as was said in a similar case by the supreme court of Massachusetts, the settlement and discharge, “although obtained by false and fraudulent representations, constitutes a good defense until rescinded and avoided by a return of, or an offer to return, the money paid by the defendant to obtain it.” Brown v. Hartford Fire Ins. Co., 117 Mass. 479; Home Ins. Co. v. Howard, 111 Ind. 544; Vandervelden v. Chicago & N. W. Ry., 61 Fed. Rep. 54.
This is not a case where a debtor compromises with his creditor by the payment of a part of an undisputed debt in satisfaction of the whole, nor is it a case where a party has been induced by fraud to sign a release of his claim through ignorance of the character and contents of the instrument signed. In each of these cases a different rule would apply. Reynolds v. Reynolds, 55 Ark. 373; Mullen v. Old Colony Railroad, 127 Mass. 89. This case rests on the rule that one who receives money or property in consideration of making an agreement, and afterwards seeks to avoid and hold for naught such agreement, must first give back to the other party the consideration received. Gould v. Cayuga Co. National Bank, 86 N. Y. 75; Home Ins. Co. v. Howard, 111 Ind. 544; Brown v. Hartford Fire Ins. Co., supra; Bowden v. Spellman, 59 Ark. 259; Desha v. Robinson, 17 id. 240.
The plaintiff had no right of action at law upon his policy until he had rescinded the agreement annulling such policy by offering to return the money received from defendant upon such agreement.
Our opinion is that, as the facts stated appear in the complaint, the judgment of the circuit court is correct, and it is affirmed; but the judgment of dismissal is without prejudice to a future action.
Bunn, C. J. dissents.