Noyes v. Loughead

The opinion of the court was delivered by Hoyt, J. — In the cause in which this appeal was prosecuted, the defendants filed an amended answer, which was [327] challenged by demurrer and held insufficient. After this they filed their second amended answer, setting up substantially the same defense as in the first one. Thereupon respondent moved the court to strike it from the files, and for judgment on the pleadings for want of an answer. Motions of this kind, under the circumstances of this case, are not directly recognized by our statute, and the practice of interposing them should not be encoui-aged, as there is usually a moi’e orderly way to reach defects in pleadings, and one which will better preserve the right of amendment so liberally provided for in our code. But where a party, having just had a ruling that certain facts constituted no defense, comes again into court relying upon an answer setting up only the same facts, he cannot complain if the court strikes it from the files and proceeds to judgment as though no answer had been filed. And since that is substantially what was done in this case, we are not disposed to disturb the action of the court in that regard. The other question presented by the appeal is as to the sufficiency of the answer as to which the court sustained the demurrer, and this must depend entirely upon the construction to be given the bond upon which the action was brought, and the lease referred to therein. If, construing these two instruments together, it appears that it was in the contemplation of the parties at the time the bond in question was given that the lease was for five years, commencing on the 15th day of March, the facts alleged in the answer constituted a defense to the action. If, however, the construction of these instruments establishes the fact that it was intended that the lease was to be for a period of five years from the time the building was completed, the facts set out were not sufficient. The bond refers to the lease, and to the rent to grow due thereunder. The provisions of the lease, so far as this question is concerned, [328] provide substantially that the party of the first part leases to the party of the second part the building in question for the period of five years’, said building being now under course of construction upon certain lots by the said plaintiff under contract with Hetherington, Clements & Co., architects, and to be completed on or about the 15th day of March, 1890. It is contended on the part of the appellants that the statement that it was to be completed on or about the 15th day of March, 1890, was the fixing of a definite day when the lease should commence, and that if the building was not finished at that time the lease would be ineffectual. It is doubtful whether this would be taken to have been the intention of the parties if there was nothing else in the lease, or in the bond which was executed in connection therewith, which could aid in determining such intention. It might well be held that this clause was inserted by way of description of the building, and to show that under the contract for its construction it was to be completed on a certain day. This would be more reasonable than to hold it to have been a covenant on the part of the lessor that the building would be ready for occupancy on that date, and that if it was not, he would respond in damages. There are, however, other expressions in the lease and bond which furnish material aid in arriving at the intention of the parties. The lease is for the definite term of five years, but is by its terms to commence on a blank date, and end on a blank date. Though the terms of the lease are referred to in the bond quite fully it is nowhere referred to as commencing on a certain date, but is always spoken of as commencing upon the completion of the building, and ending five years from that time. In our opinion the lower court rightly construed the lease as being one to commence upon the completion of the building rather than upon any cer [329] tain' day, and this being so, the facts set up in the amended answer constituted no defense. The judgment will be affirmed. Stiles, Scott and Anders, JJ., concur.