Miller v. Missouri State Life Insurance

*281ON REHEARING.

TRIMBLE, J.

Upon a rehearing granted in .the above entitled cause, the case has been reargued and the entire matter fully presented in Gareful and extensive briefs on both sides.

After again considering the matter we are of -the opinion that the conclusion reached in the former opinion is right and that the judgment should be affirmed. There is a vast difference between this and the case of Green v. Security Mutual Life Ins. Co., 159 Mo. App. 277. That was a suit in equity to cancel the new policy and to reinstate the old. The present case is a suit at law on the new policy in which the plaintiff is demanding all of the benefits flowing therefrom while at the same time he is repudiating one of the essential, basic, component parts of it and without which the new policy would not have been entered into. All of which is conclusively shown not only in the papers themselves but in the evidence adduced in the case. It is elementary that one cannot appropriate the benefits of a contract and at the same time deny its obligations. If the plaintiff, through fraud, was led into giving up his old policy for the new, then such fraud, when established, would, under proper conditions, entitle plaintiff to cancel the entire new contract and reinstate the old but it would not entitle him to affirm the new while at the same time repudiating an obligation on which it is concededly based.

There is one observation in the original opinion in reference to the Green case which seems to require modification. It is said in the original opinion that the Green case held that Green would have been entitled, in the first suit he brought, to stand op the policy and yet repudiate the certificate of loan. The Green case does not so hold. The portion of the opinion in the Green case, quoted in the original opinion herein, was stated in showing that Green was not chargeable with laches or delay in bringing suit, since, so far as he knew, there was nothing anywhere to notify him of the fact that the new policy and the certificate of loan were parts *282of the same contract. It also went to answer the charge that Green, upon discovery of the certificate of loan, did not at once rescind in toto but elected to stand on the new contract and assert his rights thereunder. At page 265 of the Green case it is said that until the end of Green’s first suit, the “plaintiffs were not required to relinquish their rights under the new policy since, so far as they knew, its force as a contractual obligation hhd nothing to do with the certificate of loan!”

The former opinion is adhered to in so far as concerns the approval of the trial court’s view of the case, and also with reference to the reversal of the judgment and the remanding of the cause with directions to enter judgment for plaintiff for $454.12 with interest from August 1, 1913. But with reference to costs, inasmuch as the record shows that defendant, before trial, offered, to allow judgment to be taken for more than.the amount now found to be due, the defendant is not chargeable with any costs accruing after the date of the filing of said offer, to-wit, February 24, 1914. [Sec. 1965, R. S. 1909.]

The other judges concur.