9 Minn. 190 | Minn. | 1864
By the Court
The complaint in this action charges that “ the Defendant, on or about the 29th day of October,* A. D. 1859, and from that time until on or about the 10th day of April, A. D. 1861, leased, hired and rented of and from the Plaintiff, and actually was in the possession and occupancy of and occupied, as his family residence during that time, as the tenant of the said Plaintiff, and was, during all that time the tenant of the said Plaintiff in, and occupying that certain brick two-story dwelling house,” &c.
“ That said premises were worth, and of the value of the sum and agreed price, of twenty-five dollars per month for each, and every month. In consideration whereof the Defendant became liable, and promised said Plaintiff to pay said.sum therefor,”':&c.
The Defendant, in his answer, “ denies each and every allegation in the complaint.”
When the Plaintiff closed his evidence and rested his case, the Defendant “ moved to dismiss the action on the ground that the evidence did not sustain the complaint.” The motion was allowed, and Plaintiff excepted.
It is not pretended that a written lease was proven, and no evidence was given to show how much the use of the premises was worth for the time they were occupied by the Defendant, and on account of the want of evidence on these two points, said motion was made and allowed.
The Defendant insists that this is an action upon a lease, and, therefore, that proof of a lease is a pre-requisite to a recovery.
This position we think untenable. It is true that the Plaintiff declares on a lease; but we think he also sufficiently stated a
The pleader who drew the complaint seems to have been in doubt, whether the evidence would show á holding under a written lease, or, simply, by permission of the Plaintiff, and to have shaped the allegations so that the evidence might correspond with them in either view of the case.
The Defendant not having objected to this mode of pleading, the Plaintiff was entitled to recover if he proved a tenancy either under a lease or by permission.
We do not wish here to intimate that such double statement of' the .same cause of action is correct pleading.
Had the Defendant wished to object, his remedy was by motion to strike out, &c. Compiled Stat., 542, sec. 80; Rule 12, Dist. Court Rules; Benedict vs. Seymour, 298, (6 How. Prac.)
It is further necessary to inquire whether it was incumbent on the Plaintiff to prove the value of the use of said premises for the time they were occupied by Defendant.
Our statute provides that the answer shall contain a denial of each allegation controverted, &c.
The meaning of this language can hardly be misapprehended. Bach allegation means every allegation separately considered.
’ When the denial of the answer is applied to this allegation separately considered, it is clearly insufficient. A mere negation of an allegation of value is not such a “ denial ” as the rules of pleading require. Lynd vs. Picket et al. 7 Minn., 194; 1 Chitty's Pl., 613, and cases cited.
This denial being insufficient, the value alleged was admitted.
We think that the Court below erred in granting ' said motion, , and the judgment must, therefore, be reversed.
