Menk v. Commercial Insurance

Citations

• 70 Cal. 585
• 11 P. 654
• 1886 Cal. LEXIS 851

Syllabus

<p>Eire Insurance — Pleadings—Evidence to Contradict—Representations in Application. —The action was brought on a fire insurance policy to recover the amount of an alleged loss. The complaint averred that the policy was issued on an application made and signed by the plaintiff, which contained certain material representations as to the manner in which the building was occupied. On the trial, the plaintiff, against the objections of the defendant, testified that he did not know what representations the application contained. Held, that the evidence was inadmissible under the complaint.</p> <p>Id. — New Trial—Newly Discovered Evidence. — The defendant moved ■ for a new trial on the ground of newly discovered evidence, in support of which it presented the affidavit of its agent contradicting the evidence of the plaintiff given at the trial, and tending to show that the representations contained in the application were made by him. Held, that a new trial should have been granted.</p>