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 de
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.
Judgment reversed.