207 N.W. 199 | Minn. | 1926
1. An answer, though on its face good, is sham when it is so clearly false that it tenders no genuine issue for trial. Sheets v. Ramer,
2. An answer is frivolous when the insufficiency as a defense of the facts which it pleads is determinable immediately upon inspection. Sheets v. Ramer,
3. The amended answer alleges that on February 1, 1925, the leased apartment became untenantable and unfit for occupancy, and so continued until the defendant left; that it was unsanitary and unhealthful because of noxious and nauseating and offensive odors and gases which permeated it; that the defendant complained to the plaintiff, but the condition was not remedied; that a disorderly house was maintained in certain apartments of the building; and that he left because the apartment was untenantable and unfit for occupancy.
The answer is not sham. So far as the printed record shows neither the complaint nor the answer was verified; but on the hearing of the motion there was an affidavit in general terms supporting the answer, and an affidavit in general terms denying it. Neither shows the other to be false. The answer tenders an issue.
Neither is the answer frivolous. It cannot be said, upon inspection, that under its allegations a constructive eviction cannot be proved.
The plaintiff claims that there was a waiver by continued possession. The condition, in part at least, was a continuing one. For aught that appears it could be remedied. The answer does not show affirmatively a waiver. The cases are gathered in Greenstein v. Conradi,
Order and judgment reversed. *131