Morrett v. Fire Ass'n

Citations

• 265 Pa. 9
• 108 A. 171
• 1919 Pa. LEXIS 486

Syllabus

<p>Appeal — Practice, Supreme Court — Questions not raised below — ■ New theories.</p> <p>1. The Supreme Court will not consider on appeal any new theory or attitude toward the trial of the case which was not properly before the court under the theory on which the case was tried.</p> <p>2. If a party does not avail himself of a legal position that was fairly before him had he desired to use it, he cannot on appeal raise it to the prejudice of the opposing party who thus might be deprived of bringing forth evidence that would be necessary to meet the legal position assumed.</p> <p>Estoppel — Disclaimer of title in ejectment — Action upon fire insurance policy conditioned upon sole ownership.</p> <p>3. The mere fact that the insured filed a disclaimer of all title to the premises in an action of ejectment brought against him after taking out a policy of fire insurance which provided that it was unenforceable if the insured was not, at the time of the fire, the unconditional and sole owner of the property destroyed, does not estop him from subsequently maintaining an action upon the policy to recover for loss of a building on the premises destroyed by fire; and especially is this the case where the plaintiff in the suit on the policy could not read or write the English language, and the disclaimer was filed by his attorney in the ejectment, who was a plaintiff in that suit.</p> <p>Evidence — Disclaimer of title in ejectment — Admission—Admissibility in action of assumpsit — Parties—Strangers—Conclusiveness.</p> <p>4. A disclaimer of title made in an action of ejectment is competent evidence as an admission against the party making it, in a subsequent action of assumpsit brought by him against a stranger to the ejectment proceedings, but as such, it is subject to an attack to show mistake, misunderstanding, retraction, inadvertence, lack of knowledge or the like.</p>