Marix v. Stevens

• Decision Date: 18 October 1887
• Parties: MARIX v. STEVENS.
• Court: Colorado Supreme Court

15 P. 350

10 Colo. 261

MARIX v. STEVENS.

Supreme Court of Colorado

October 18, 1887

Commissioners' decision. Appeal from superior court of Denver.

The complaint alleges that defendant on the twenty-seventh day of January, 1883, rented and leased of the plaintiff two rooms for lodgings, and agreed to pay plaintiff, in advance, the sum of $60 as rent therefor, for the month next ensuing; that defendant so leased and rented, and had the right to the possession of, said rooms, and the use and enjoyment thereof at all times during the month ensuing, from said twenty-seventh day of January, 1883; that defendant has not paid said sum of $60 or any part thereof. Defendant demurred to the complaint, alleging for cause that it failed to state a cause of action; and that it was ambiguous, unintelligible and uncertain, in failing to show whether defendant used and enjoyed the premises, or merely had the right to the possession, use, and enjoyment of the same. Demurrer overruled, and, defendant failing to plead, judgment rendered for plaintiff, from which judgment defendant appealed, and assigned for error the action of the court in everruling the demurrer to the complaint.

Smith & Austin and Ward &amp Reuter, for appellant.

Jno. W. Horner and Peter Palmer, for appellee.

RISING C.

It is urged by appellant, in argument, that the allegations of the complaint do not show a contract for the leasing of realty, but a contract for lodging personal in its nature, and upon which defendant can only be held liable in damages for breach of contract, as upon actions for the breach of contracts for the purchase of personal property.

There is nothing in the complaint showing that the defendant was a mere lodger, or that the contract was a contract for lodging. It states a cause of action for the non-payment of a definite and certain sum, due and payable under a contract of lease of certain real estate. The allegations of the complaint that defendant rented and leased of the plaintiff two rooms; that defendant agreed to pay the plaintiff the sum of $60, in advance, as rent for said premises for the ensuing month that said sum had not been paid,--contain a statement of facts sufficient to show a right of recovery. The further allegations of the complaint, that defendant so leased and rented said premises, and had the right to the possession thereof, and to the use and enjoyment of the same, at all times during said...