McGahren v. Insurance Co.

Opinion by Beaver, J., An examination of the entire testimony of this case leads us to the conclusion that the plaintiff was bound by his receipt, forwarded through his associate Watson, for the check for $250, received, indorsed and used by him. He used the check and signed the receipt in full, with full knowledge of what was implied therein. There is nothing in Watson’s letters, even assuming that he had authority to act for the defendant, which [50] could in any way mislead Mm. There was no evidence, therefore, of fraud, accident or mistake which could relieve the plaintiff of the legal effect of his receipt. Having, therefore, given it deliberately, he is bound by it, and the jury should have been so instructed: Daly v. Dallmeyer, 20 Pa. Superior Ct. 366; Guhl v. Frank, 22 Pa. Superior Ct. 531. The item of $150 paid to Dr. O’Malley to secure his attendance and services as an expert at the trial, rests on an entirely different foundation. Under the amendment to plaintiff’s statement, he proved the payment of $150 to O’Malley, for which the defendant was undoubtedly liable. The verdict having been rendered for $261, there was evidently included in it something for the plaintiff’s services, in addition to the amount paid to O’Malley, which cannot be allowed. Substantial justice will he reached by allowing the verdict to stand for the amount of this payment, together with interest, and eliminating the balance for services. This sufficiently disposes of the case, without a discussion of the several assignments of error. The payment to O’Malley was not made until after the receipt of the check. The amount would, therefore, bear interest — say from May 1, 1899, to the date of the verdict, June 14, 1904, which amounts to $46.10. The judgment is, therefore, modified and reduced to that amount, to wit: $196.10, with interest from June 14, 1904, and, as so modified, it is affirmed.