Weight, J.
l. Principal fraud or ' aiicut: effect of receipt. That plaintiff rendered the services- as claimed: 'that by his contract he was entitled to $290, and that he never was in fact paid x but $120, are matters about which there is no dispute.
The substance of the defense is, that the captain of the boat settled with him on the 10th of November, 1865: took from him a receipt, showing that he had been paid in full; that upon the strength of this receipt, and relying upon it,' the company settled with the captain, allowed him the full amount, $290, and that plaintiff, the defendants having acted in good faith, must look to the captain for any balance. The evidence in brief was, that the captain was the agent of the company; that as such he settled with the pilot, paid him $110; had before paid him $10; stated that he then had no more money of the company ; that he would go to the office of the railroad com*111pany that day, get the balance and forward it to plaintiff or to any one he might name, that night or the next morning; that plaintiff, unable to read or write, and without it being read to him, signed, by making his mark, a receipt that the captain had paid him “ in full for his services as pilot on said boat one hundred and ten dollars.” The money was never sent, but the captain settled with the company, and he was allowed for the full amount of plaintiff’s wages, or $290. There was also testimony tending to show that the captain intended to practice a fraud at the time he took the receipt.
tio£d: repllca" Appellant’s objection, that plaintiff could not rely upon such fraud without setting it up, is not tenable. The set UP payment. No replication was necessary. Rev. 2895: Nor was it necessary to amend the petition to justify such proof. The doctrine that, because a replication is prohibited by our practice, save in exceptional cases, a plaintiff must amend his petition, before he can avoid defendant’s defense, by proving fraud or the like, finds no support in the law. Plaintiff then had a right to rely upon the fraud. And, if the captain, in his capacity as agent, acted fraudulently, or obtained this receipt by fraud, then, though the principal was ever so innocent, the subsequent settlement with him, and allowance of the whole claim by the company, would not prevent a recovery by plaintiff. If plaintiff settled, with the captain, received so much, and agreed to look to him individually for the balance, and not to-the company, then he could not recover. But, if he made no such agreement, the settlement of the company with its agent, based upon a receipt obtained by fraud, would not estop plaintiff from asserting his claim. And this, in substance, was the law as given to the jury by the court: Whether, in the absence of fraud, in view of the language of the receipt and all the circumstances, plaintiff would *112be concluded, we do not stop to inquire, as no such question is really made in the case.
Affirmed.