Selts Inv. Co. v. Promoters of the Federated nations of the World

• Decision Date: 23 June 1930
• Citation: 202 Wis. 151,231 N.W. 641
• Parties: SELTS INV. CO. v. PROMOTERS OF THE FEDERATED NATIONS OF THE WORLD ET AL.
• Court: Wisconsin Supreme Court

202 Wis. 151

231 N.W. 641

SELTS INV. CO.

v.PROMOTERS OF THE FEDERATED NATIONS OF THE WORLD ET AL.

Supreme Court of Wisconsin.

June 23, 1930.

Appeal from Orders of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Affirmed.

Action by the Selts Investment Company against the Promoters of the Federated Nations of the World, Emelie L. Baireuther, and Leo James Lentzen, begun September 22, 1925, to recover a balance due upon a lease of real estate. From orders entered September 21, 1929, sustaining plaintiff's demurrers to the answers interposed by the defendants Baireuther and Lentzen, these defendants appealed.

This is the same action that was considered by this court in the decision reported in 197 Wis. 476, 222 N. W. 812. The defendant Promoters of the Federated Nations of the World leased certain premises in Milwaukee from the plaintiff. The defendants Baireuther and Lentzen guaranteed the payment of the rent to become due under said lease. The defendant lessee defaulted in the payment of its rent, and vacated the leased premises after it had been served with the statutory three-day notice to vacate or pay rent.

By supplemental complaint filed after the expiration of the term, and pursuant to the mandate found in 197 Wis. 486, 222 N. W. 812, the plaintiff demanded judgment for the full amount of rent due and unpaid under the lease. The court sustained demurrers to the separate answers of the defendants Baireuther and Lentzen on the ground that these answers did not state facts sufficient to constitute a defense.

Lenicheck, Boesel & Wickhem, of Milwaukee, for appellants.

Michael Levin, of Milwaukee, for respondent.

STEVENS, J.

[1] 1. The appealing defendants seek by their answers to raise issues that were considered by this court and decided adversely to their contentions when this case was formerly before this court. As to these issues, the law is correctly and definitely settled in Selts Investment Co. v. Promoters of Federated Nations of the World, 197 Wis. 476, 482-486, 222 N. W. 812. Under that decision the appealing defendants cannot be heard to contend that they were released from liability for the rent when the tenant vacated the premises and the plaintiff took possession thereof. That decision modifies and limits what is said in the first Selts Investment Co. Case, reported in 197 Wis. 471, 474, 220 N. W. 220.

[2] 2. The defendants who guaranteed the payment of the rent were properly joined as parties defendant, because they were personally liable upon the lease. Section 260.17 of the Statutes.

[3][4] 3. The complaint alleges that the plaintiff made every effort to relet the premises for the purpose of minimizing the damage caused by the failure to pay the rent reserved. The answer of each of the appealing defendants contains the following allegation: “This defendant further answering says, he (she) has not knowledge or information sufficient to form a belief as to the efforts made by the plaintiff to rent the premises.” This is such a denial as would put the plaintiff to its proof. Section 263.13 of the Statutes.

Under section 263.17 of the Statutes the only ground upon which a demurrer may be interposed to the defensive portions of an answer is that “it does not state facts sufficient to constitute a defense.” It is never the function of a denial to state facts that constitute a defense. The only purpose of a denial is to put in issue the allegations of the complaint.

“The code permits a demurrer to an answer only where it contains new matter. A simple denial of the allegations of the complaint is not within the provision.” Lund v. Seamen's Bank, 37 Barb. (N. Y.) 129, 131. See, also, Smith v. Greenin, 4 N. Y. Super. Ct. (N. Y.) 702; Maretzek v. Cauldwell, 19 Abb. Prac. (N. Y.) 35, 38;Dean v. Atkinson, 201 Iowa, 818, 208 N. W. 301, 303. The demurrer reaches only the statement of “new matter...