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of the county court was affirmed, and it now brings the case to this court.

By agreement of parties the only questions presented for decision in the Appellate Court and here are, whether the condition was violated by the assignment so as to entitle the lessor to declare a forfeiture of the lease, and if it was, whether the right of forfeiture was waived by the subsequent acts of the parties.

The general voluntary assignment by the lessee no doubt had the effect to transfer its leasehold interest to its assignee. True, the assignee might have refused to take it, and would be understood to have done so if he had not expressly or by unequivocal acts accepted it. (Smith v. Goodman, 149 Ill. 75; Burrill on Assignments, sec. 374.) The latter question is not, however, involved here, it being admitted that there was a positive election on the part of the assignee to accept the lease prior to the filing of the petition in the county court.

We have held that a valid voluntary assignment under our statute transfers the title of all the assignor's property to the assignee. (Davis v. Chicago Dock Co. 129 Ill. 180; Freydendall v. Baldwin, 103 id. 325; Lowe v. Matson, 140 id. 108; Smith v. Goodman, supra; Orr v. Hanover. Fire Ins. Co. 158 id. 149.) In the latter case we said (p. 154): "Upon the execution and delivery of the deed of assignment all the title and interest originally held by the assignor passed from him to the assignee. His legal interest was gone and the right of possession was gone. The assignee was clothed with the right and power to sell and convey the property and distribute the proceeds among the creditors. After the assignment the assignor had no more control over the property than he would have in case of an absolute sale." It is clear, under these decisions, that a voluntary assignment of a leasehold estate, when accepted by the assignee, has the same effect as would the sale and transfer of the lease to a purchaser in the ordinary way.

But it is claimed the transfer in the case of a voluntary assignment is by operation of law, and therefore, under the well established rule of law, no breach of the assignor's condition. This position we regard as untenable. The act by which the title to the assigned estate is transferred from the assignor to the assignee is purely voluntary on the part of the former. Voluntary assignments for the benefit of creditors are transfers without compulsion of law. They are termed "voluntary" to distinguish them from such as are made by compulsion of law, as under statutes of bankruptcy and insolvency. (Burrill on Assignments, secs. 2, 3.) There can be no such thing as an involuntary assignment under our statute. (Weber v. Mick, 131 Ill. 520.) Therefore those authorities which hold that if the lessee makes an involuntary assignment the leasehold will pass by operation of law have no application here. The authorities generally seem to sustain the position that when an assignment by the lessee is a voluntary one, the lease does not pass to his assignee by operation of law but by act of the party, and the distinction in this regard between voluntary and involuntary assignments is well defined. (Wood on Landlord and Tenant, 716; Holland v. Cole, 1 H. & C. 67; Rockford v. Hackman, 9 Hare, 474; Brandon v. Aston, 21 Eng. Ch. 23.) While language is found in some of the cases cited by counsel for appellee which seems to sustain their contention, yet when the real questions for decision in those cases are considered, they are not in conflict with those cited above.

But without reference to authorities cited by counsel on either side, it cannot be held an assignment, under our statute, passes the estate of the assignor to the assignee relieved of the condition that an assignment without the consent of the lessor shall entitle him to a forfeiture. All our decisions are to the effect that the transfer is by the voluntary act of the assignor in executing and delivering the deed of assignment. No process of law what

ever intervenes in order to vest the title in the assignee. In Davis v. Chicago Dock Co. supra, we said (p. 187): "The assignee, however, took no greater interest or better title than his assignors possessed. In his hands the title was affected with every infirmity and subject to all the equities that existed in respect thereof in the hands of the grantor in the deed of assignment." And section 11 of the act is to that effect. It is there provided that the assignee shall have as full power and authority to dispose of all the estate, real and personal, assigned as the debtor or debtors had at the time of the assignment. Clearly this language implies that he has no greater power or authority to dispose of property than had the debtor or debtors at the time the assignment was made. Hence to hold the assignment operated to extinguish the condition would be to maintain the inconsistent, not to say absurd, position, that while an assignment by the lessee would have been a violation of the condition, still the transfer of the lease by his assignee, who holds it subject to the same condition upon which he held it, will pass it free from the condition. We entertain no doubt that the voluntary assignment, under the law of this State, was a violation of the condition against assigning.

The other question is, was there by the subsequent acts of the lessor a waiver of the right to declare the forfeiture? We think not. It is contended by appellee that receiving rent from the assignee after the assignment was a waiver of that right. It appears from the agreed state of facts in the record, that upon the assignment being made and the assignee taking possession of the estate, which consisted of restaurant supplies and fixtures, in the leased premises, conversations took place between the president and general manager of appellant and the assignee and his attorney with reference to the assignee's occupancy of the premises, and both the assignee and his attorney stated to him that the rental stipulated in the lease would be paid by the assignee

during the time he occupied the premises. The assignee had not at that time declared his purpose to accept the lease, nor did he do so until after the payment of the rent which it is claimed operated as a waiver of the condition. The rent paid was for a month, commencing December 13, 1894, (the date upon which the assignee took possession,) and was not a payment of a month's rent according to the terms of the lease. Other facts appear in 'evidence from which it clearly appears that it was not the intention of either party that the payment of the rent by the assignee should be in any sense a recognition of his right to hold the property under the lease. We have already seen that the assignee had the right to accept or refuse the lease, and until he had made his election the lessor had a right to deal with him, as to the use of the property, without reference to the lease. The mere fact that its president arranged with him for the payment of rent during the time that he was using the property, without declaring his intention to accept it under the lease, in no way proved an intention to waive any condition of forfeiture. It was said in Cheney v. Batten, Cowp. 243, by Lord MANSFIELD, where the question was whether the acceptance of rent operated as a waiver upon the landlord: "The question, therefore, is, quo animo the rent was received and what the real intention of both parties was. If the truth of the case is that both parties intended the tenancy should continue, there is an end of the plaintiff's title; if not, the landlord is not barred of his remedy by ejectment." This clear and concise statement of the law is in harmony with all the authorities. Under the facts of this case we think it cannot be said that there was a waiver on the part of the lessor.

The judgment of the Appellate Court will be reversed.
Judgment reversed.




75a 151

Filed at Ottawa May 12, 1896–Rehearing denied October 13, 1896.

75a 350 75a 367 76a 399 162 447

1. TRIAL-when court should not take a case from the jury. A peremptory instruction to find for defendant is properly refused where 175 318 there is evidence tending to establish a cause of action.

175 479 176 274 77a 438 77a 520 162 447 80a 103

3. MASTER AND SERVANT-duty of master to observe and know conditions under which he sets servant to work. It is the duty of an employer, in ordering a laborer to work near or alongside a pile of ore packed into such a mass that the use of explosives is required to loosen it, to observe carefully the condition of the material as to looseness or compactness and all other features of its structure, so as to be able to determine what shall be done to prevent the fall of ore upon such employee.

4. SAME servant may rely upon master's precautions for his safety. An employee set to work beside a pile of ore from which material is required to be loosened by the use of explosives, is not bound to study the conditions affecting the stability of the ore at the sides of the pile, or do anything except to work as well as he can under the directions given him.

2. SAME-personal injury-evidence held sufficient to go to the jury. Evi-
dence that a foreman struck with his pick a pile of ore, whose fall
caused an injury to an employee, and profanely ordered such em-
ployee to work at the place, is sufficient to go to the jury on the 162 44
question whether such conduct was or was not wanton and reck-
less, as alleged in the declaration.

82a 114
82a 512
83a 535

5. SAME―master liable for negligent commands of one he places in control. An employee given by a corporation control over a particular class of workmen in any branch of its business is in such respect the direct representative of the company, and the company is responsible for the consequences of the commands given by him.

1162 447 69a 396 70a 92

6. SAME when the act of a foreman is the act of the master. The act of a foreman in picking at a pile of ore beside which he has set a laborer at work, so as to loosen the support of the upper part of it and cause the ore to fall upon such laborer, is the conduct of the master, and not that of a fellow-servant.

162 447

172 182

7. SAME-extent of master's duty to furnish servant a safe place to work. The duty of an employer to use reasonable diligence in seeing that the place where the work of his servant is to be performed is safe for that purpose, extends not only to such risks as are known to him, but to such as he ought to know in the exercise of due dili

162 447

75a 33

162 447 f184 485 185 393 185 575 88a 173 88a 400 88a 644 162 447 92a 8313 162 447 90a 5594 162 447 89a 9116

162 447 d94a 1099 94a10276

162 447 191 5239 192 1512 96a 2291 96a 4592 97a 4628 162 447 193 10333 162 447 196 7350 196 2385 196 13387 100a $376 100a11609 100a18611 162 447 102a 8353 102a10354 102a 9355 162 447 200 $109

200 $110

200 9285


447 202 8339

202 8341

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