Capitol Amusement Co. v. Anheuser-Busch, Inc., 13085.
| Decision Date | 26 February 1934 |
| Docket Number | 13085. |
| Parties | CAPITOL AMUSEMENT CO. et al. v. ANHEUSER-BUSCH, Inc. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Suit by Anheuser-Busch, Inc., against the Capitol Amusement Company and another. To review a judgment for plaintiff, defendants bring error.
Reversed with directions.
John T. Bottom, Philip Hornbein, and Donald M Shere, all of Denver, for plaintiffs in error.
Wilbur F. Denious, Hudson Moore, and Dayton Denious, all of Denver for defendant in error.
The plaintiff in error was defendant in the trial court and will be referred to as the tenant, and defendant in error as the landlord.
The landlord brought this suit to recover $6,400, being the balance of rent claimed by it for the year 1930, under a written lease dated July 31, 1926. The leased premises were a portion of an old building known as 1645-1649 Curtis street, Denver, Colo. The entire building consisted of two storerooms and an upstairs. One storeroom and the upstairs was leased to this tenant and the other storeroom to another tenant. The tenant filed its answer, from which the affirmative defenses were stricken on motion. By leave of court, an amended answer was filed, to which a demurrer was sustained. The court entered its order allowing tenant ten days to elect whether to stand on the amended answer or tender an amendment to the amended answer. A second amended answer was tendered for filing. The court denied permission to file same on the ground that it did not state a defense. The court determined that tenant had been regularly served with process, had failed to answer, and that the legal time for answering had expired. Default of the tenant was ordered, and judgment was entered on the default in the sum of $6,997. The tenant seeks reversal of this judgment.
Under the conditions disclosed by the record, we must conclude that there was no default, but, to shorten discussion of this error and dispose of the effect of the judgment, we will treat it as a judgment on the pleadings. It was error as to form and not as to substance.
A copy of the lease is made a part of the complaint and contains the ordinary and usual covenants and agreements of business property leases. The tenant admits occupation under the lease until about July 1, 1930, when subtenant abandoned the premises on account of their alleged untenantable condition.
This case rests solely on the sufficiency or insufficiency of the tenant's second amended answer, which may be determined by the well-settled law relating to landlord and tenant.
The substance of the allegations of this second amended answer is as follows: That the wall and foundation of the building owned by the landlord, and partially occupied by the tenant became unsafe and insecure, and the building unsafe for occupancy; that the wall of the building, which was a party wall, had been condemned by the building inspector of the City and County of Denver, and said inspector required certain repairs to be made to make the building safe for occupancy; that this unsafe condition was...
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Blackwell v. Del Bosco
...the defective premises and has had means of information equal to that of the landlord. * * *' To the same effect is Capitol Co. v. Anheuser-Busch, 94 Colo. 372, 30 P.2d 264, where, said the court, the ordinary rule is that there is no implied warranty on the part of the lessor that the prem......
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Blackwell v. Del Bosco
...doctrine of implied warranty of habitability for residential leaseholds was specifically rejected. See also Capitol Amusement Co. v. Anheuser-Busch, Inc., 94 Colo. 372, 30 P.2d 264, where the court again rejected the implied warranty doctrine in spite of the apparent existence of a city hou......
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...the property to the condition it would have been in had the tenant performed the obligation of the lease. Capitol Amusement Co. v. Anheuser-Busch, Inc., 94 Colo. 372, 30 P.2d 264; Davis v. Allen, 97 Utah 285, 92 P.2d 1100; Bachrach v. Estefan, Tex.Civ.App., 184 S.W.2d 640; Powers v. Merkley......
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