O'Connell v. American Fire Ins. Co. of Philadelphia
| Decision Date | 24 August 1911 |
| Citation | 189 F. 1018 |
| Court | U.S. District Court — Northern District of California |
| Parties | O'CONNELL et al. v. AMERICAN FIRE INS. CO. OF PHILADELPHIA. |
Daniel O'Connell, for plaintiffs.
Goodfellow Eells & Orrick, for defendant.
The action is one at law, and proceeds upon the theory that an ascertained indebtedness under the policy sued on existed in favor of plaintiffs as against defendant, which was due and owing, and that plaintiffs were induced by the fraudulent representations of defendant's agent to give a receipt in full upon the payment of $3,000, that this receipt was given without consideration, and that defendant remains indebted to plaintiffs in the balance of $3,000, for which recovery is sought.
The evidence wholly fails to sustain this theory. It shows that the amount due on the policy, if anything, had never been determined between the parties, but that defendant, through its agent, represented to plaintiffs, in substance, that the company was 'down and out' and unable to continue in business; that if the plaintiffs would accept 50 per cent. of their claim, or $3,000--one-half the face of the policy-- and give a release of all claim under the policy defendant would pay that sum, but that it could not pay more to anybody, and that if plaintiffs did not accept that sum they might not get anything; that plaintiffs accepted this offer and were given a check for $3,000, in consideration of which they executed and delivered to defendant, with full knowledge or opportunity to know the nature of the documents a receipt wherein it was recited that the amount received was 'in full of all claims for loss or damage by fire,' etc., and accompanied this receipt by a formal release, in which it was stated that the said sum was paid 'in full satisfaction of all claims for loss or damage' under the policy, and that 'in consideration of this payment the policy is hereby canceled in full and surrendered to the company,' and plaintiffs thereupon surrendered the policy to the defendant. These facts do not warrant a judgment for plaintiffs.
It is not an instance of the giving of a mere receipt in full on the payment of a part only of an established indebtedness but is an instance of the compromise of an unliquidated demand, wherein for a stipulated payment the entire claim was settled, and a formal release of all further demand arising thereon given. As against such a transaction, even...
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Patterson v. Cincinnati, NO & TP Ry. Co.
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