Meridian Life and Trust Company v. Eaton

• Decision Date: 08 November 1907
• Docket Number: 5,855
• Citation: 82 N.E. 480,41 Ind.App. 126
• Parties: MERIDIAN LIFE AND TRUST COMPANY v. EATON
• Court: Indiana Appellate Court

82 N.E. 480

41 Ind.App. 126

MERIDIAN LIFE AND TRUST COMPANY v. EATON

No. 5,855

Court of Appeals of Indiana

November 8, 1907

41 Ind.App. 118. At 126.

Original Opinion of June 18, 1907, Reported at: 41 Ind.App. 118.

Petition for rehearing overruled.

OPINION

ON PETITION FOR REHEARING.

MYERS J.

On petition for a rehearing, appellant earnestly insists that the court erred in holding that the contract of December 1898, did not "protect" it from liability to repay $ 3,000 received from appellee. Appellant states its position as follows: "Our contention is that the company is 'protected,' not 'bound,' by the contract. We respectfully insist that there is no inconsistency between a claim that the company was not bound by that contract and a claim that the contract serves to protect it against any direct liability to the appellee. The appellant did insist and still insists that it has never recognized or acknowledged any liability growing out of the contract, and in that sense has never 'ratified' or 'adopted' it, that is, it has never recognized the contract as imposing any liability upon it to account for or refund the money received under it."

By reference to the contract, a stipulation will be found whereby the appellant was to execute its promissory note to the appellee for $ 1,500, with eight per cent interest payable semiannually, due in ten years, and set aside from the expense fund $ 1 for each $ 1,000 of insurance in force at the end of each year, to be divided annually between the parties to the contract. No claim is made that it ever complied or offered to comply with that stipulation. While appellant pleads the contract as a defense, he does not aver that it is able, ready and willing to perform the conditions thereby imposed upon it, nor did it offer any evidence tending to prove a willingness to comply with the conditions in the contract by it to be performed. It proceeds upon the theory of a contract entered into by the individuals for its benefit, and having received the benefit, to that extent only had the contract been ratified, but as to the burden imposed, it disclaimed liability and refused to be bound by it, on the ground that it is not a party to the contract and has never ratified nor adopted it.

We are still unable to see how a party may accept the benefits of a contract, and at the same time refuse to be bound by its terms and conditions. The rule is that under a...