Mechanics' Bank v. Klein

Pleading — Answer.—The answer must directly traverse or confess and avoid the allegations of the petition. Practice — Motion.—The motion for judgment, notwithstanding the answer, is no part of the record unless made so by the bill of exceptions.

Appeal from St. Louis Circuit Court. This was an action brought by the Mechanics’ Bank, based on a lease alleged to have been executed on the 15th day of November, 1858, whereby said bank leased to Charles De Wald, Philip Klein, and Constant Schnerr, certain premises in the city of St. Louis, being the basement story of the building situated on the southwest corner of Third and Chesnut streets ; that among other things the said DeWald, Klein and Schnerr covenanted to pay plaintiff for said premises an annual rent of eight hundred dollars, that is to say, two hundred dollars on the first day of April, July, October, and January, of each and every year during said term. That it was also agreed and stipulated in said lease, that if said rent should at any time become due and remain unpaid, it should bear interest at the rate of ten per cent, per annum from the time the same became due until paid. The petition further states, that on the 25th of June, 1859, the said DeWald, Klein and Schnerr, by their deed in writing under seal of that date, for value received, did convey and transfer unto Philip Schladtweiler the deed of lease and the premises therein described, given by the Mechanics’ Bank as aforesaid, to have and to hold the same, with all of the covenants therein contained, and subject to the rents therein contained ; that for value received said Philip Schladtweiler, Philip Klein, and Peter Wegman, executed said deed of assignment on said day last aforesaid, whereby said defendants, Philip Schladtweiler as principal and Philip Klein and Peter Wegman as securities, covenanted and agreed to and with the Mechanics’ Bank to pay the rent as aforesaid in said deed of lease specified, and at the times therein stated, and to do and perform all of the covenants therein contained; that there is due on account of the rent of said premises the sum of four hundred dollars for two quarters, ending on the 1st of January, 1860, and prays judgment against the defendants, Schladtweiler, Klein and Wegman, for said amount, with ten per cent, interest. The answer to this petition, by Klein and Wegman, stated that they are not liable to the Mechanics’ Bank, as alleged in their said petition, in any sum whatever on the assignment set forth in the petition, or by virtue of anything contained in said assignment. They, further answering, say that plaintiff is not entitled to recover from them in this action for any rent whatever, or in any sum whatever for rent, as is alleged in the petition. They further deny that they ever receivedhany value from plaintiff for the execution by them as securities for Schladtweiler, and say that the plaintiff has no cause of action against them whatever. The plaintiff moved the court below for judgment notwithstanding the answer. This motion for judgment the court below sustained, and rendered judgment by default against the defendants,- Klein and Wegman, and for this error they appealed.