16 Mo. 214 (Mo. 1852), Niedelet v. Wales

Citation:16 Mo. 214
Opinion Judge:GAMBLE, Judge.
Party Name:NIEDELET, Respondent, v. WALES et al., Appellants.
Attorney:Knox & Kellogg, for appellants, contended: Henry N. Hart, for respondent,
Court:Supreme Court of Missouri
 
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Page 214

16 Mo. 214 (Mo. 1852)

NIEDELET, Respondent,

v.

WALES et al., Appellants.

Supreme Court of Missouri.

March Term, 1852

1. It is no defense to an action for rent, under an express covenant, that a rise in the river rendered a part of the leasehold premises untenantable. When the defendant files an offset for damages sustained by such a rise, it is properly stricken out on motion.

Appeal from St. Louis Court of Common Pleas.

Knox & Kellogg, for appellants, contended:

1. That the motion to strike out should have been overruled. If the answer was no defense, the objection should have been taken either by demurrer or by motion for judgment for want of answer. Laws of 1849, p. 80, sec. 9.

2. That the defendants should have been allowed the loss sustained by them, in consequence of the untenantable condition of the premises. Chitty on Contracts, 7th Am. ed. p. 338, and cases there cited.

Henry N. Hart, for respondent, contended that the offset was properly stricken out. The covenant to pay rent was absolute. No exception is made in the lease for a rise in the river, and, therefore, the defendant cannot escape from his liability. Linn v. Ross, 10 Ohio 412; Fowler v. Bott, 6 Mass. 67; Phillips v. Stevens, 16 Mass. 238; 3 Kent 465-7; Redding v. Hall, 1 Bibb 536; 12 Mo. 209; Sutton v. Temple, 12 Mees. & Wells, 52.

OPINION

GAMBLE, Judge.

Niedelet leased to the defendant a warehouse on Water street, in St. Louis, for three years from the 16th of February, 1850, the rent payable monthly under an express covenant. He sued them for the rent due in June, July and August of that year. They answered that the premises during the months of May, June and July became untenantable by reason of water filling the cellar and first story of the house, and by reason of deposits of sand, mud and filth, by which they were put to great trouble and expense in removing their goods and restoring the premises to a tenantable condition, of which expense they furnished a bill of items, and claim the amount of the plaintiff as a set-off.

A motion was made to strike out the answer, which was sustained, and judgment given for the plaintiff. The defendants appeal to this court, and ask the reversal...

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