Beattie v. Parrott Silver & Copper Co.

McLeary, J.

This action was begun in the court of a justice of the peace of Silver Bow County, where judgment was rendered in favor of the defendant, and an appeal taken thence to the district court of Silver Bow County, which resulted in the same way. The case was tried .before the court sitting without a jury, oil an agreed statement of facts, which was substantially as follows: That the plaintiffs, on the nineteenth day of November, 1885, leased to Robert H. Aiken a certain piece of ground for a period of two years, reserving a monthly rental of twenty-five dollars therefor; that Aiken held possession and paid rent for three months, and on the eighteenth day of February, 1886, by indorsement on the lease, assigned the same to the defendant in this case, the Parrott Silver and Copper Company. The defendant paid rent to the plaintiffs in this case, and held possession of the ground for nine months following the assignment, and then, by indorsement on the lease, reassigned its interest to Robert H. Aiken. It was recited in the statement of facts “that, so far as the plaintiffs or defendant know, said Aiken was never cognizant of said last assignment; that said defendant had had no understanding or dealings whatever with the said Aiken concerning said last assignment; that, within the knowledge of defendant, said Aiken never accepted or knew of or consented to the last assignment, and that no consideration ever passed between defendant and said Aiken therefor; that from some time prior to said assignment to the present time defendant has had no dealings whatever with said Aiken, nor did defendant know the whereabouts of said Aiken during said time; that since the eighteenth day of February, 1886, said property, or the lease or the assignment thereof, has never been in the possession of said Aiken, or out of the possession of the defendant, and neither-was ever delivered to said Aiken.” The defendant also, at the date of the reassignment, gave notice to the plaintiffs of the reassignment, and that they had no more use for the ground, and requested the plaintiffs to look to Aiken for the rent after the current month. These are all the facts material to the consideration of this case. Judgment having been rendered in favor of the defendant, the plaintiffs appeal to this court.

The only question presented for our consideration, as the case appears in the record and briefs of the parties, is, whether or not the defendant, by the assignment to Aiken, relieved itself of its responsibilities under the lease and its obligation to pay the rent. It is not disputed that if the assignment had been properly made to and accepted by Aiken, or if it had been made to a third person, and properly accepted by him, the defendant would have been released from further liability. What, then, is the effect of the assignment of the lease made by the defendant to Aiken? It is contended that it was not necessary for Aiken to accept the assignment, or even to know of its existence, inasmuch as he was already liable under the lease for the payment of the rent by privity of contract, and that, “ the reason of the law failing, the law itself ceased.” We do not think this position tenable. If Aiken was liable, under the lease, by privity of contract, that does not give the defendant the right to put upon him an additional liability, through this assignment, without his consent, as a second assignee. The assignment to Aiken stands in no other light than any other contract; it could not be made by the defendant alone, without the consent of the assignee. The delivery of the lease might not have been necessary; but the acceptance of the assignment by Aiken, either express or implied, was certainly requisite to its validity. Maynard v. Maynard, 10 Mass. 457; Townson v. Tickell, 5 Eng. Com. L. 31; Wood’s Landlord and Tenant, sec. 339; 3 Washburn on Real Property, p. 314, c. 4, sec. 2, par. 34; 38 Am. Dec. 577, note. But the agreed statement of facts recites that he did not even know of the existence of the assignment, much less did he accept it; and that the lease itself was never redelivered to him, with or without the indorsement thereon. But it appears that the assignment from the defendant to Aiken was made by an indorsement on the lease, written and signed by defendant’s attorney, and that the paper itself remained in the office of the attorney until it was produced in court. This transaction certainly lacks one of the material requisites to the completion of a valid assignment, to wit, the acceptance of the same by the assignee. For this reason, we think there was error in the judgment of the court below, and that judgment should have been rendered, on the facts stated, in favor of the plaintiffs. Therefore it is accordingly ordered that the judgment of the district court be reversed, and judgment here rendered in favor of the plaintiffs for twenty-five dollars, and interest from the eighteenth day of November, 1886, at the rate of ten per cent per annum, and all the costs of this court and the courts below.

Judgment reversed.

McConnell, C. J., and Bach, J., concur.