{ "id": 5117935, "name": "Kew v. Trainor", "name_abbreviation": "Kew v. Trainor", "decision_date": "1893-12-21", "docket_number": "", "first_page": "629", "last_page": "639", "citations": [ { "type": "official", "cite": "50 Ill. App. 629" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "118 Mass. 92", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2154000 ], "opinion_index": -1, "case_paths": [ "/mass/118/0092-01" ] }, { "cite": "30 Mo. 130", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8850979 ], "opinion_index": -1, "case_paths": [ "/mo/30/0130-01" ] }, { "cite": "55 Iowa, 135", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2316001 ], "opinion_index": -1, "case_paths": [ "/iowa/55/0135-01" ] }, { "cite": "41 Pa. St. 341", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 480038 ], "opinion_index": -1, "case_paths": [ "/pa/41/0341-01" ] }, { "cite": "35 Mo. 520", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8851059 ], "opinion_index": -1, "case_paths": [ "/mo/35/0520-01" ] }, { "cite": "17 Wend. 448", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "56 N. Y. 837", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "81 How. Pr. 388", "category": "reporters:state", "reporter": "How. Pr.", "opinion_index": -1 }, { "cite": "5 Cal. 49", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2275920 ], "opinion_index": -1, "case_paths": [ "/cal/5/0049-01" ] }, { "cite": "55 Wis. 637", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8707678 ], "opinion_index": -1, "case_paths": [ "/wis/55/0637-01" ] }, { "cite": "4 Gray, 140", "category": "reporters:state", "reporter": "Gray", "case_ids": [ 2075510 ], "opinion_index": -1, "case_paths": [ "/mass/70/0140-01" ] }, { "cite": "15 Johns. 278", "category": "reporters:state", "reporter": "Johns.", "case_ids": [ 2140962 ], "opinion_index": -1, "case_paths": [ "/johns/15/0278-01" ] }, { "cite": "70 Ill. 369", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308414 ], "opinion_index": -1, "case_paths": [ "/ill/70/0369-01" ] }, { "cite": "18 Ill. 431", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438628 ], "opinion_index": -1, "case_paths": [ "/ill/18/0431-01" ] }, { "cite": "45 Me. 359", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 478860 ], "opinion_index": -1, "case_paths": [ "/me/45/0359-01" ] }, { "cite": "7 Hill, 254", "category": "reporters:state", "reporter": "Hill,", "weight": 2, "opinion_index": -1 }, { "cite": "49 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2603923 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/ill/49/0425-01" ] }, { "cite": "69 Mich. 29", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1321602 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/mich/69/0029-01" ] }, { "cite": "21 Ga. 183", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 270912 ], "opinion_index": -1, "case_paths": [ "/ga/21/0183-01" ] }, { "cite": "1 Marsh 359", "category": "reporters:state", "reporter": "Marsh", "opinion_index": -1 }, { "cite": "81 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2673112 ], "pin_cites": [ { "page": "322" } ], "opinion_index": -1, "case_paths": [ "/ill/81/0321-01" ] }, { "cite": "43 N. H. 475", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4554934 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nh/43/0475-01" ] }, { "cite": "45 Wis. 622", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8708339 ], "opinion_index": -1, "case_paths": [ "/wis/45/0622-01" ] }, { "cite": "7 Hill 254", "category": "reporters:state", "reporter": "Hill", "opinion_index": -1 }, { "cite": "27 Barb. 415", "category": "reporters:state", "reporter": "Barb.", "case_ids": [ 5013786 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/barb/27/0415-01" ] }, { "cite": "117 Ill. 160", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2892054 ], "opinion_index": -1, "case_paths": [ "/ill/117/0160-01" ] }, { "cite": "63 Ill. 204", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2609696 ], "opinion_index": -1, "case_paths": [ "/ill/63/0204-01" ] }, { "cite": "52 Tex. 222", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2147283 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/tex/52/0222-01" ] }, { "cite": "15 Pa. St. 295", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 408679 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/pa/15/0295-01" ] }, { "cite": "53 Fed. Rep. 58", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3807662 ], "opinion_index": -1, "case_paths": [ "/f/53/0058-01" ] }, { "cite": "89 Ill. 19", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 826251 ], "opinion_index": 0, "case_paths": [ "/ill/89/0019-01" ] }, { "cite": "49 Ill. 425", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2603923 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/49/0425-01" ] } ], "analysis": { "cardinality": 905, "char_count": 21052, "ocr_confidence": 0.503, "pagerank": { "raw": 1.8145913524951213e-07, "percentile": 0.7182909119411981 }, "sha256": "97ea82a8e13eef79c563b7281020e283496b676a27d11a3ca611bc8d21ab7264", "simhash": "1:0a6d3aae2e73e288", "word_count": 3703 }, "last_updated": "2023-07-14T15:57:42.711650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kew v. Trainor." ], "opinions": [ { "text": "Opinion of the Court,\nShepard, J.\nAppellee demised to one- Gonzalez the premises known as Mo. 71 East Harrison street, Chicago, for the term of .three years, by a written lease, signed by both parties, dated April 1, 1892.\nAmong numerous other and usual covenants and agreements on the part of the lessee, was:\n1. That at .the expiration of the specified term, \u201c or sooner determination thereof by forfeiture, he will yield up said premises to \u201d the lessor.\n2. \u201c That neither he (the lessee) nor his legal representatives will underlet said premises * * * or assign this lease without the written assent\u201d of the lessor being first had.\n3. That if default be made in any of the covenants or agreements in the lease contained, to be kept by the lessee, \u201c his executors, administrators or assigns,\u201d it should be lawful for the lessor to declare the term ended and re-enter upon the demised premises, and again enjoy the same as in his former estate.\n4. That when the term should be ended in any way, and the lessee should remain in possession, he should be deemed guilty of a forcible detainer of the premises under the statute, and \u201c be subject to all the conditions and provisions above named,\u201d and' to removal.\n5. That the lessee waived notice of the election of the lessor to declare the lease ended under any of the provisions of the lease.\nOn June 13,1892, the appellee, lessor, by a written indorsement on the back of the lease, consented to the assignment of the lease by the lessee to O. G. F. Russell, \u201c on the express condition, however, that the assignor (lessee) shall remain liable for the prompt payment of the rent and performance of the covenants on the part of the second party as therein mentioned, and that no further assignment of said lease or subletting of the premises or any part thereof shall be made without my written assent first had thereto.\u201d\nAnd on the same date Gonzalez, the lessee, signed and sealed along with Bussell, the assignee, a writing on the back of the lease, as follows:\n\u201c For value received I hereby assign all my right, title and interest in and to the within lease, unto O. G. F. Bus-sell, his heirs and assigns, and in consideration of the consent to this assignment by the lessor I guarantee the performance by said O. G. F. Bussell, of all the covenants on the part of the second party in said lease mentioned.\nIn consideration of the above assignment and the written consent of the party of the first part thereto, I hereby assume and agree to make all the payments and perform all the covenants and conditions of the within lease, by said party of the second part to be made and performed.\nWitness my hand and seal, this thirteenth day of June, A. D. 1892.\nE. Gonzalez, (Seal.)\nO. G. F. Bussell, (Seal.)\u201d\nGonzales went into possession of the premises under the lease, and carried on the cigar business there until he assigned the lease to Bussell, who then went into possession and occupied the premises for the cigar and dram shop business until the end of October, 1892.\nAbout that time Bussell assigned the lease, and delivered possession of the premises to the appellant, Kew, without the consent or knowledge of appellee, and he has since carried on a dram shop there.\nThe appellee, on December 2, 1892, gave written notice to Bussell and Kew, that because of the assignment of the lease by Bussell to Kew, contrary to the covenants of the lease, he had elected to determine the lease, and demanded possession of the premises.\nKew, the appellant, refusing to surrender possession, the appellee brought an action of forcible detainer, and recovered, both in the justice\u2019s court and on an appeal to the Circuit Court. \u2022 It is from the judgment in the latter court that this appeal is prosecuted.\nA reversal of that judgment is asked for, on the grounds :\n1. That the demise was not upon condition.\n2. That an assignment by Bussell to Kew without Trainer\u2019s consent, would not give to Trainor the right of reentry.\n3. That it was not proved that Trainor did not consent to the assignment to Kew.\n4. That Trainor accepted rent from Kew, and thereby waived the condition.\n5. Error in giving and refusing instructions.\nConsidering the grounds urged for a reversal in their reverse order, it will suffice to say that the instructions complained of, will stand or fall, according to the view that shall be taken of the law involved in the first two propositions.\nAs to the fourth ground, it is most clearly established, by the evidence, that at the time the rent for November was paid, which was the only rent paid by the appellant, the appellee knew nothing whatever of the assignment of the lease by Bussell to appellant, and had no knowledge or notice that appellant was paying the rent for himself, or any person other than Bussell, to whom the receipt ran, for the . rent that was paid.\nIn order to have created a waiver of forfeiture, by acceptance of rent from the assignee, it was necessary not only'to have proved that the rent was paid subsequent to the assignment of the lease, but also that when the rent was paid and accepted, the appellee had knowledge of the assignment. \"Wood\u2019s Landlord and\" Tenant, Sec. 323.\nAs to the third ground, Trainor expressly testified that he \u201cnever consented to the assignment to Kew,\u201d and there\" is nothing in the record that contradicts him on that point.\nThe attempted argument that the testimony quoted was of a legal conclusion, and not of facts from, which the court could determine whether he did consent, requires no answer.\nUpon the first ground, that the demise to Gonzalez was not upon condition, we feel no hesitancy.\nThe lease contained the covenant of Gonzalez, that he would not assign without the written assent of Trainor, and there followed the mutual stipulation, that if he did so assign, Trainor might declare the term ended and re-enter. Here was an express reservation of the right of re-entry if the covenant should be broken.\nThe right of re-entry was dependent upon the covenant not to assign, and the condition that if the covenant was broken, the right of re-entry would exist, attaches.\nMutual covenants of that kind are one of the tests to ascertain if the agreement be a mere covenant, or a condition. Wood\u2019s Landlord and Tenant, Sec. 279, p. 433.\n\u201c So if a power of re-entry for the breach of a covenant is added to such covenant, it has the force of a condition.\u201d 1 Taylor\u2019s Landlord and Tenant, Sec. 278.\nIf it be not a condition upon which the term depended the covenant not to assign would be of little value to the landlord, who might well, in the exercise of his desire, wish also to retain the right to say what kind of a tenant he would accept.\nA covenant, instead of a condition, will not be implied where the language of the instrument makes it clear that the intention of the parties was that the term should depend upon a condition. The intention of the parties when clearly ascertainable, will control as to whether a covenant or a condition was meant by the words used. 4 Kent\u2019s Commentaries, 132.\nThe second ground possesses more serious difficulties.\nEver since Dumpor\u2019s case (1 Smith\u2019s Leading Cases, 119) although with many shadings, it has been the law, where not cured by statute, that a condition not to alien without license is determined by an alienation under the first license granted, and no subsequent alienation is a breach of the condition, nor does it give a right of entry to the lessor.\nThe proviso there was that the lessee, or his assigns, should not alien the premises to any person or persons, without the special license of the lessors; and the lessors afterward licensed the lessees to alien the land to any person or persons.\nBut we are aware of no case holding that the condition was determined by the first license to assign, where it ran to a particular person, and that person, by a new agreement, expressly covenanted, in consideration of the license and assignment, that he would perform all the covenants and conditions of the original lease, and where the license itself recited that it was given on the express condition that no further assignment should be made without a further license thereunto.\nWe think that what was done by the parties in connection with the license to assign to Bussell, and the assignment to bim thereunder, and his new covenant in consideration thereof, affords abundant reason to avoid the strict rule in Dumpor\u2019s case, which, although cited as being the law in Voris v. Renshaw, 49 Ill. 425, has been almost always followed with reluctance and avoided when possible. See notes to Dumpor\u2019s case in Smith\u2019s Leading Cases, swpra.\nAnd we therefore hold that the condition of the lease against assignment without license, was operative upon Bussell, the assignee with license, and that the election of Trainor to declare the term ended, after he learned of the assignment by Bussell to Kew, without his license, was lawfully exercised.\nThe instructions complained of were, as to such as were given, in conformity with the view of the law here expressed and, as to those refused, opposed thereto, and there was no error in the action of the court upon the same. And the judgment of the Circuit Court will be affirmed.\nGaby, J.\nA covenant with the right of re-entry for a breach, has the force of a condition. Taylor, L. and T., Sec. 278.\nConditions subsequent are not favored in the law, and are construed strictly because they tend to destroy estates. Voris v. Renshaw, 49 Ill. 425.\n\u201c Legal representatives \u201d in the lease here, mean executors or administrators. Bowman v. Long, 89 Ill. 19.\nConsent to the assignment to Eussell, left Eussell free to assign, unless restrained by something not on the face, but in the indorsements of the lease. Dumpor\u2019s case and notes, 1 Smith L. C. 119.\nThus far I believe the majority of the court and I travel together; but as to the effect of the indorsements we part.\nFirst. Eussell agreed to \u201cperform all the covenants and conditions of the within lease by said party of the second part to be * * * performed.\u201d\nThis could not refer to the covenant that neither Gonzalez nor his legal representatives would assign, for that was not only their personal act, but the term having passed to Eussell, he had gone out of their power to assign.\nSecond. Trainor\u2019s assent to the assignment to Eussell \u201c on the express condition * * * that no further assignment * * * shall be made without my written assent,\u201d is a condition annexed to his assent to the assignment to Eussell\u2014the breach of the condition avoiding that assent; that is an impossible condition; the assignment to Eussell being made under that assent, was irrevocable.\nWe may reasonably conjecture that Kew and Eussell both thought that what they did reserved to Kew control over a future assignment; but, as Bishop observes, \u201cnot unfrequently the effect of a contract differs considerably from what would be supposed by one unacquainted with the law.\u201d Bishop on Contracts, Sec. 437.\nOn the whole case I can find no covenant even, much less a condition, that Bussell should not assign without Train- or\u2019s assent; nor any right in Trainor to enter if Eussell did so assign; and therefore it is my opinion that the judgment should be reversed.", "type": "majority", "author": "Shepard, J. Gaby, J." } ], "attorneys": [ "Appellant\u2019s Brief, Osborne Bros. & Burgett. Attorneys.", "Appellee\u2019s Brief, Winston & Meagher, Attorneys." ], "corrections": "", "head_matter": "Kew v. Trainor.\n1. FORFErroRE\u2014Not Waived by the Acceptance of Rent, etc.\u2014Mere proof of the acceptance of rent, subsequent to assignment unauthorized by the lease, does not relieve the term from the forfeiture; it must also be shown that at the time when such rent was received, the landlord was, aware of the assignment.\n3. Landlord and Tenant\u2014Assignment of Lease Without Authority\u2014 Waiver of Forfeiture.\u2014Where a tenant assigned a lease without the. consent of his landlord, in order to create a waiver of the forfeiture, by acceptance of rent from'the assignee, it is necessary, not only to prove that the rent was paid subsequent to the unauthorized assignment of the lease, but also that when the rent was paid and accepted, the landlord had knowledge of the assignment.\n3. Lease\u2014 Condition Not to Assign.\u2014Where a lease contained a covenant that the lessee would not assign without the written assent of the lessor, followed by a mutual stipulation th&t if he did so assign, the lessor might declare the term ended and re-enter, it was held, to be an express reservation of the right of re-entry if the covenant, not to assign, should be broken.\n4. Leases\u2014Covenants and Conditions.\u2014 Mutual covenants, such as the right of re-entry, are dependent upon a covenant not to assign, and the condition that if the covenant is broken the right of re-entry exists, is one of the tests to ascertain if the agreement be a mere covenant, or a condition.\n5. Lease\u2014Power of Re-entry for a Breach of a Covenant.\u2014If the power of re-entry for the breach of a covenant be added to such covenant, it has the force of a condition.\n6. Leases\u2014Covenant Not to Assign.\u2014If a covenant not to assign the lease without the landlord\u2019s consent is not a condition upon which the term depends, the covenant not to assign is of little value to the landlord, who may well, in the exercise of his desire, wish to retain the right to say what kind of a tenant he will accept.\n7. Lease\u2014When a Covenant Will Be Implied.\u2014A covenant, instead of a condition, will not be implied where the language of the instrument makes it clear that the intention of the parties was that the term should depend upon a condition. The intention of the parties, when clearly ascertainable, will control as to whether a covenant or a condition was intended by the words used.\n8. Lease\u2014Condition not to Alien\u2014First and Subsequent Alienation.\u2014 In the absence of a statute to the contrary, a condition not to alien without license is determined by an alienation under the first license granted, and no subsequent alienation is a breach of the condition, nor does it give a right of re-entry to the lessor.\n9. Lease\u2014First and Subsequent Alienations\u2014Exceptions to the Rule. \u2014Where the condition not to alien without the assent of the lessor runs to a particular person, and that person by a new agreement expressly covenants, in consideration of the license and assignment, that he will perform all the covenants and conditions of the original lease, and where the license itself recites that it is given on the express condition that no further assignment shall be made without a license thereunder, the rule does not apply.\nMemorandum.\u2014Forcible detainer. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1893, and affirmed.\nOpinion filed December 21, 1893.\nThe statement of facts is contained in the opinion of the court.\nAppellant\u2019s Brief, Osborne Bros. & Burgett. Attorneys.\nAppellant contended that the demise was not upon condition. The clause in the lease, \u201cIt is further agreed by said party of the second part (Gonzalez) that neither he nor his legal representatives * * * shall assign this lease without the written consent of the said party of the first part (Trainor) first had and obtained thereto,\u201d is a covenant and not a condition.\nWhen the words can without violence or strain be resolved into a covenant, they will not be held to be a condition. Hague v. Ahrens, 53 Fed. Rep. 58; Paschall v. Passmore, 15 Pa. St. 295; Johnson v. Gurley, 52 Tex. 222; Board of Ed. v. Trustees, 63 Ill. 204; Gallaher v. Herbert, 117 Ill. 160.\nItisaivell settled rule of construction that in doubtful cases, a writing will be held to be a covenant rather than a condition, and the rule is based on the idea that a condition as tending to destroy the estate, which the grant is professedly designed to confer, will be less favorable to the grantee. 4 Kent\u2019s Com. 132; Lynde v. Hough, 27 Barb. 415; Livingston v. Stickles, 7 Hill 254; Blumer v. Ph\u0153nix Ins. Co., 45 Wis. 622.\nAn assignment by Bussell to Kew without Trainor\u2019s consent would not give to Trainor the right of re-entry. Train- or\u2019s consent to assignment by Bussell to Kew was not required. The covenant in the lease that \u201cneither he (Gonzalez) nor his legal representatives \u201d would assign the lease without the written consent of Trainor, did not bind the assignee of Gonzalez not to assign without such license. Expressio unius exolusio alterius. 1 Wood\u2019s Land, and Ten. (2d Ed.), 715, note; 1 Taylor\u2019s Land, and Ten. (8th Ed.), Sec. 403, note and Sec. 407, note; Emerson v. Simpson, 43 N. H. 475; Hansen v. Meyer, 81 Ill. 321, 322; Doe v. Smith, 5 Taunt. 795; 1 Marsh 359; Anon., 1 Dyer 66a; Gregson v. Harrison, 2 T. R. 426.\nThe right of alienation is an incident of a \u201c lease of property, which is to be defeated only by a very clear stipulation The courts lean to it.\u201d Robinson v. Perry, 21 Ga. 183; Walsh v. Martin, 69 Mich. 29; Voris v. Renshaw, 49 Ill. 425.\nCovenants against assignment are not favorably regarded by the courts, and are construed liberally in favor of the lessee, and so as to prevent the restriction from extending beyond the express stipulation in reference thereto. 1 Wood\u2019s Land, and Ten. (2d Ed.), Secs. 32, 321; 1 Taylor\u2019s Land, and Ten. (8th Ed.), Secs. 407, 483; Voris v. Renshaw, 49 Ill. 425; Livingston v. Stickles, 7 Hill, 254.\nCovenants and conditions tending to clog alienation and tie up leasehold estates in the hands of lessees are to be construed strongly against the lessor. The courts hold a strict hand over covenants and conditions for defeating leases, and before a forfeiture will be declared the case must come within the terms and import of the covenant or condition upon a strict construction against the lessor. Livingston v. Stickles, 7 Hill, 254; Voris v. Renshaw, 49 Ill.425; Paschall v. Passmore, 15 Pa. St. 295.\nConditions of defeasance are construed strictly as tending to impose a forfeiture on the grantee which may exceed the amount of injury suffered by the grantor, and thus substitute an arbitrary penalty fixed by the parties for the equitable compensation which would otherwise be awarded by the law. Paschall v. Passmore, 15 Pa. St. 295; Lynde v. Hough, 27 Barb. 415; Southard v. Cent. R. Co., 2 Dutch. (N. J.) 13; Hooper v. Cummings, 45 Me. 359; Wilson v. Galt, 18 Ill. 431; Palmer v. Ford, 70 Ill. 369; Jackson v. Silvernail, 15 Johns. 278; Hadley v. Hadley Mfg. Co., 4 Gray, 140; Emerson v. Simpson, 43 N. H. 475; Wier v. Summons, 55 Wis. 637.\nA provision in a lease for re-entry by lessor upon assignment by the lessee, his legal representatives or assigns, is determined by assignment with 1'icenSe, and the assent of the lessor to a subsequent assignment is not required; the lessee\u2019s assignee may assign the estate without the lessor\u2019s consent. 1 Wood\u2019s Land, and Ten. (2d Ed.), Secs. 276, 320; 1 Taylor\u2019s Land, and Ten. (8th Ed), Sec. 286, note; Voris v. Renshaw, 49 Ill. 425; Chipman v. Emeric, 5 Cal. 49; Pennock v. Lyons, 118 Mass. 92; Siefke v. Koch, 81 How. Pr. 388; Murray v. Harway, 56 N. Y. 837; Dakin v. Williams, 17 Wend. 448; Dougherty v. Matthews, 35 Mo. 520; Jones v. Jones, 12 Vesey, 185; Brummel v. Macpherson, 14 Ves. 173; Doe v. Bliss, 4 Taunt. 735; Sharon Iron Co. v. City of Erie, 41 Pa. St. 341; Dickey v. McCullough, 2 W. & S. (Pa.) 88.\nThe assignment to Bussell, and Trainer\u2019s consent to such assignment, constituted a new contract, and did not carry with it the provision for re-entry for an assignment by Bus-sell without Trainor\u2019s consent. Walsh v. Martin, 69 Mich, 29; Van Vranken v. Cedar Rapids, etc., R. Co., 55 Iowa, 135.\nA mere agreement not to assign does not imply a right of re-entry on breach of such agreement. Van Valkenburgh v. Payton, 2 Gilman, 44; Shaw v. Coffin, 14 C. B. N. S. (108 E. C. L.) 372; Crowley v. Price, L. R., 10 Q. B. 302; Johnson v. Gurley, 52 Tex. 222; 1 Taylor\u2019s Land, and Ten. (8th Ed.) Sec. 291.\nAppellee\u2019s Brief, Winston & Meagher, Attorneys.\nIt was contended that the appellee did not waive his right to declare a forfeiture and re-enter for condition broken.\nHothing done by the lessor before he has knowledge of the forfeiture can have the effect of waiving it. After he is informed of the forfeiture he must make his election in view of all the circumstances, whether he will waive or enforce it. He is not bound to elect immediately, but may take his own time to do so. MeKildoe, Exr. v Darracott, 13 Grat. (Va.) 284,\nKotice of assignment is material and issuable, for otherwise the lessee would take advantage of his own fraud, for he might make the grant or demise so secretly and so near to the day on which the rent is to be paid, as to be impossible for the lessor to have notice of it. When the lessor has no notice of the assignment, the acceptance of rent does not conclude him of his entry. Pennant\u2019s case, 3 Coke (64 b) p. 172; Wood\u2019s Landlord and Tenant (2d Ed.) 711, Sec. 516; Walker v. Engler, 30 Mo. 130; Jones v. Clark, 1 Denio (N. Y.) 517; McKilcloe v. Darracott, 13 Grat. (Va.) 278; Clark v. Cummings, 5 Barb. (N. Y.) 339; Woodfall on Landlord and Tenant, 324; Duppa v. Mayo, 1 Wm. Saunders, 288, a, b, (note 16); Hawie v. Oswil, Cro. Eliz. 553, 572; Goodright v. Walker, 3 Cowp. 803." }, "file_name": "0629-01", "first_page_order": 625, "last_page_order": 635 }