On Petition for Rehearing.
Roby, J.1. Appellant’s counsel have reargued with force and ability their proposition that the consideration expressed in the release was thereby made contractual. This is in fact the pivotal proposition involved, and the conclusion announced on this point was and is unanimous.
Appellee was in the employ of appellant company. He was injured while in such service, and liability or no liability for damages on account thereof was a matter between them.
The complaint counts upon a parol promise averred to have been made in consideration of a written release of liability.
Appellant denied the claim so made. The issue was one of fact.
It being first averred and then established that appellee had surrendered his claim upon the consideration named, and it appearing that appellant had not only accepted the release so procured, but had asserted it at the trial, the doctrine, that “he who derives the advantage ought to sustain the burden,” is directly applicable. This is not a new doctrine; it is rather a principle than a doctrine.
8. A contract for the sale of land made by one who had no authority to act for the owner, who had taken and assigned notes therein provided for, was held to bind the owner. In the case of Moore v. Pendleton *372(1861), 16 Ind. 481, Worden, J., in Ms opinion upon such facts, adopted the statement of a standard text-writer (1 Parsons, Contracts p. 46), which is as follows: “Generally, if the principal receive and hold the proceeds, or beneficial results, of the contract, he will be estopped from denying an original authority, or a ratification.” See, also, Adams Express Co. v. Carnahan (1902), 29 Ind. App. 606, 94 Am. St. 279.
Appellant might have set up by special plea that the contract sued on was made by persons who were not authorized to act for it in that behalf. Had it done so, a reply of the facts relied upon to overcome such lack of authority would have been proper. It did not plead such defense, but came into court holding and claiming under the contract, and thereby obviated the need of any further pleading by appellee.
The petition for rehearing is overruled.