than three months after leaving it. In the meantime defendant had moved its garage business to another place in Chicago, and the porter had quit its employ. A search for the sample case proved unavailing. It was lost." Holding that the defendant was not liable, the court said: "The record discloses no evidence amounting to the dignity of proof that the porter, at the times when he received plaintiff's sample case, was acting within the scope of his employment; nor does it appear that defendant, or any of its office force, had any knowledge relating to the custody of the sample case or of its existence, until after its loss and the complaint subsequently made in consequence of such loss. Thus defendant was in the dark in relation to plaintiff's sample case and its loss until it had not only moved its place of business, but had dispensed with the services of the porter to whom plaintiff intrusted it. For aught that appears to the contrary, the porter has it yet. With the porter plaintiff left his sample case; to him he must look for its return. The evidence does not even cast upon defendant the duty of a voluntary bailee or any other legal responsibility in relation to the sample case of plaintiff. Nor does plaintiff contend that any liability is fastened upon defendant from any direct evidence, but argues that liability arises by implication from the facts in evidence, and that, by applying to such evidence 'all such presumptions and inferences arising from it,' the porter is proved to be the agent of defendant to receive the sample case of plaintiff. We are not able to follow either such logic or reasoning to the extent of holding that any inference or presumption of agency is justified upon any legal theory known to us from proof of that or like character." In Lloyd v. West Branch Bank (1850) 15 Pa. 172, 53 Am. Dec. 581, 1 Am. Neg. Cas. 574, it appeared that a bank depositor left a package of notes with the cashier for safe-keeping. While the case turned principally on a holding that the loss of the notes was not due to negligence, the court said further: "The next question is whether there was any such general usage, custom, and practice of the cashier of that bank, to act as a voluntary bailee, without reward, in such like cases, as to make the corporation liable for his acts. I have not been able to see such evidence on the paper book. There is no evidence on the subject, except that, at the same time, it appears that Cowden put a bundle of his, sealed up in the same way, into the safe. No person, corporation, or individual can be made the bailee of another man's goods without his own consent, express or implied. If the servant, of his own head, and without authority of his master, takes goods on deposit, unknown to his master, although they be deposited in the master's house, he is not answerable, but the servant only. There must, in order to induce a legal liability on anyone, be a contract, express or implied. There is no knowledge or permission established in this case, on the part of the directors, of any such general rule, usage, or practice, as would authorize the implication of a contract on the part of the corporation." In Vandeymark v. Corbett (1909) 131 App. Div. 391, 115 N. Y. Supp. 911, it appeared that a sheriff, having levied on certain live stock, left the property for a time in the custody of an employee of the defendant, who converted it. The court said: "The general rule is that a master is liable for the acts of his employee done within the scope of his employment; but it is well settled that this rule only applies when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong, at the time and in respect to the very transaction out of which the injury arose. It was substantially undisputed that Lasure represented the sheriff in retaining possession of the cattle, that he was engaged in doing his work, and that the sheriff alone had the right to control or direct him in that particular employment. Under such circumstances it is apparent, I think, that the trial court did not err in finding, as it apparently did, that the defendant did not sustain the relation of master to Lasure at the time of the alleged conversion." of The same principle was involved in Walker v. Hannibal & St. J. R. Co. (1894) 121 Mo. 575, 24 L.R.A. 363, 42 Am. St. Rep. 547, 26 S. W. 360. In that case it appeared that a railroad baggageman was in the habit carrying certain drills gratuitously in the baggage car, and throwing them off at points designated by the owner. In throwing off a drill it struck and injured the plaintiff. Holding that the railroad company was not liable, it was said: "Before the defendant can be held liable for the negligent act of its baggageman, it must be made to appear not only that at the time of the injury he was its servant and in its employ, but that the act of the servant which occasioned the injury was done in the course of his employment. The master is not liable for the acts of the servant which are not connected with the service which the servant had been employed to perform. If, for instance, a servant should be employed to do a particular thing or kind of work, and does something else, without his master's consent, and, by reason of his negligence or carelessness, another is injured, the master is not liable, because the injury was not done in the course of his employment. In order that the master may be held liable, the act causing the injury must pertain to the duties which the servant was employed to perform. If the baggageman, in delivering the drills, was not serving his master, but was merely doing so to accommodate others, and the master was deriving no benefit therefrom, then the master is not liable, even though the injury complained of I would not have been committed without the facilities afforded by the baggageman's relations to the defendW. A. S. ant." S. M. BRAUNSTEIN, Inc., Appt., V. MCCRORY STORES CORPORATION, Respt. New Jersey Court of Errors and Appeals - March 6, 1922. (93 N. J. Eq. 419, 116 Atl. 707.) Landlord and tenant right to assign lease. 1. A lessee may assign his lease in the absence of express provision in the lease to the contrary. [See note on this question beginning on page 135.] -right of assignee to make alterations. 2. An assignee of a lease which provides that its terms shall apply to as signees is entitled to the benefit of a provision that the lessee may make all alterations necessary in the operation of its business. APPEAL by plaintiff from an order of the Court of Chancery (Leaming, Vice Ch.) disallowing a preliminary injunction in an action brought to restrain defendant from making certain alterations in a building owned by complainant. Affirmed. The facts are stated in the opinion of the court. Mr. Clarence L. Cole for appellant. Messrs. Bourgeois & Coulomb, for respondent: The lease in question must be strictly construed against the landlord-complainant, and in favor of the tenant-defendant. Hilsendegen v. Hartz Clothing Co. 165 Mich. 255, 130 N. W. 646; Nicolopole v. Love, 39 App. D. C. 343, 47 L.R.A. (N.S.) 949; Taylor, Land & T. 9th ed. § 81; Kaufmann v. Liggett, 209 Pa. 87, 67 L.R.A. 353, 103 Am. St. Rep. 988, 58 Atl. 131; Field v. Mills, 33 N. J. L. 254; Den ex dem. Bockover v. Post, 25 N. J. L. 285. The original lessee had the right to assign, and the defendant is on the premises lawfully. Simpson v. Moorhead, 65 N. J. Eq. 626, 56 Atl. 887. The assignee had the right to make the alterations and improvements. Conover v. Smith, 17 N. J. Eq. 51, 86 Am. Dec. 247; Winship v. Pitts, 3 Paige, 259. A covenant to make repairs, alterations, or improvements runs with the land. Brewer v. Marshall, 18 N. J. Eq. 337; Conover v. Smith, supra; National Union Bank v. Segur, 39 N. J. L. 173; Norman v. Wells, 17 Wend. 136; Peer v. Wadsworth, 67 N. J. Eq. 191, 58 Atl. 379; Spencer's Case, 5 Coke, 16a, 77 Eng. Reprint, 72; Congleton v. Pattison, 10 East, 135, 103 Eng. Reprint, 726; Keppell v. Bailey, 2 Myl. & K. 537, 39 Eng. Reprint, 1049, Coop. t. Brougham, 298, 47 Eng. Reprint, 106; Fleetwood v. Hull, L. R. 23 Q. B. Div. 37, 58 L. J. Q. B. N. S. 341, 60 L. T. N. S. 790, 37 Week. Rep. 714, 54 J. P. 229; White v. Southend Hotel Co. [1897] 1 Ch. 771, 66 L. J. Ch. N. S. 387, 76 L. T. N. S. 273, 45 Week. Rep. 434; Horsey Estate v. Steiger [1899] 2 Q. B. 89, 68 L. J. Q. B. N. S. 743, 47 Week. Rep. 644, 80 L. T. N. S. 857, 15 Times L. R. 367. Gummere, Ch. J., delivered the opinion of the court: On November 1, 1915, one Samuel Braunstein, who was the owner of a certain store and premises in Atlantic City, leased the same to the Braunstein-Blatt Company for a period of twenty years. The lessee entered into possession at the beginning of the term, and conducted, on the premises, a general department store until 1921, when it assigned the lease to the defendant and surrendered possession to the latter. The defendant operates a "chain" of 5 and 10 cent stores in this and other states, and after it entered into possession of the leased premises it began making alterations therein. for the purpose of rendering them suitable for the carrying on of that business therein. Prior to the assignment of this lease to the defendant, the present complainant purchased the leased premises from Braunstein, and, having learned that the lease had been assigned and that the defendant purposed making material alterations to the store, notified the defendant that the assignment of the lease was invalid, and, further, that it would not permit the intended alterations to be made. Being informed by the defendant that it proposed to carry out its plans, in disregard of the notice given it, the complainant filed its bill seeking to enjoin such action. After hearing the case on bill and answering affidavits, the learned vice chancellor, to whom the matter had been referred, refused to allow a preliminary injunction, and, from the order of disallowance, the present appeal has been taken. The first contention before us is that the attempted assignment of the lease by the Braunstein-Blatt Company to the defendant was invalid, for the reason that no such power had been conferred by the lease itself. But this contention, we think, is without merit, and for two reasons: In the first place, the rule is entirely settled in this state that, unless a lease contains a provision restraining the lessee from underletting the demised premises or assigning the lease, the lessee is entitled to do the Landlord and one or the other at tenant-right to his own pleasure, assign lease. notwithstanding the objection of the landlord. Field v. Mills, 33 N. J. L. 254; Farmer v. Davies, N. J., 116 Atl. 706, decided at the present term. An examination of the lease involved in the present case dis (— N. J. —, 116 Atl. 707.) closes that it contains no restriction against the lessee's right to assign. In the second place, it is to be noted that it is made apparent, by the tenth item of the lease, that both parties contemplated the probability of an assignment thereof during the running of the term, and by implication provided for the making of it. That item reads as follows: "It is agreed between the parties hereto that this agreement of lease shall bind and apply to the heirs, executors, administrators, successors, and assigns of the respective parties thereto." It is next argued that, even if the power to assign the lease be conceded, the assignee was without legal right to make material alterations in the demised premises. In consid-, ering this point, the provision just cited should be borne in mind; that is (in legal effect) that the various provisions of the lease should apply not only to the parties thereto, but also to their respective assigns. The question, therefore, is whether there is anything in the body of the lease which authorizes the lessee to make changes of the character contemplated by the present defendant, for, if there is, then, as we have already indicated, it inures to the benefit of the assignee. The question is answered by a reference to the seventh item of the lease, which declares "that the said party of the second part [the lessee] may make all such alterations or improvements as it may find necessary and beneficial to it in the operation of its said business conducted in the said premises; provided, however, that if any of the appurtenances hereby demised be removed, they shall be replaced at the expiration of this lease." It is not seriously contended that the proposed changes will destroy the protection afforded by the proviso, nor is it suggested that the contemplated alterations are not reasonably necessary to the defendant in the operation of its business to be conducted in the leased property, or will make it impossible to restore the premises to their original condition at the termination of the lease. The lessee being entitled to the benefit of the proviso contained in the seventh item of right of assignee to make alterations. the lease, and the For affirmance: The Chief Justice, Justices Swayze, Parker, Bergen, Minturn, Kalisch, Black, and Katzenbach, and Judges White, Heppenheimer, Williams, Gardner, and Van Buskirk. For reversal: None. ANNOTATION. Right of lessee in absence of covenant to assign lease or sublet premises. I. Scope, 135. II. Periodical tenancy: a. In general, 136. b. As affected by contemplated use c. Statutory restriction, 140. III. Tenancy at will, 145. 1. Scope. This annotation is confined to a discussion of the right of a tenant to assign his lease or sublet the premises where the contract of lease is silent as to these matters. The rights of the assignee or subtenant as against the landlord or original lessee are not treated, except where they are involved in the right of the lessee to assign or sublet; as, for instance, where the purpose for which an assignment or sublease is made is considered by the court in determining the right of the lessee to assign or sublet. Cases involving mining leases are excluded, as they are gov erned by principles peculiar to such leases. The distinction between an assignment and a subletting is not considered, except so far as the determination of that question involves the right of the lessee to assign or sublet, the rights generally between the parties as affected by the distinction being excluded. For a comprehensive discussion of the question whether an assignment of a lease is a breach of a covenant against subletting, see the note appended to Goldman v. Daniel Feder & Co. 7 A.L.R. 249. II. Periodical tenancy. New Hampshire. Spear v. Fuller (1835) 8 N. H. 174, 28 Am. Dec. 391. New Jersey. Simpson v. Moorhead (1903) 65 N. J. Eq. 623, 56 Atl. 887; Farmer v. Davies (1922) - N. J., 116 Atl. 706. And see the reported case (BRAUNSTEIN v. MCCRORY STORES CORP.) ante, 133. New York. Clarkson v. Skidmore (1871) 46 N. Y. 297; Eten v. Luyster (1875) 60 N. Y. 252; Schenkel v. Lischinsky (1904) 45 Misc. 423, 90 N. Y. Supp. 300; Lynch v. Robert P. Murphy Hotel Co. (1908) 112 N. Y. Supp. 915, order reversed on other grounds in (1909) 130 App. Div. 691, 115 N. Y. Supp. 465. See also Roosevelt v. Hopkins (1865) 33 N. Y. 81; Becar v. Flues (1876) 64 N. Y. 518; Phelps v. Erhardt (1889) 2 Silv. Sup. Ct. 336, 5 N. Y. Supp. 540. North Carolina. Moring v. Ward (1858) 50 N. C. (5 Jones, L.) 272; Krider v. Ramsay (1878) 79 N. C. 354; Barbee v. Greenberg (1907) 144 N. C. 430, 57 S. E. 125, 12 Ann. Cas. 967. Ohio. Crowe v. Riley (1900) 63 Ohio St. 1, 57 N. E. 956. Oregon. Meyer v. Livesley (1904) 45 Or. 487, 106 Am. St. Rep. 667, 78 Pac. 670. -- Pennsylvania. Williams v. Downing (1851) 18 Pa. 60; Philadelphia & E. R. Co. v. Catawissa R. Co. 53 Pa. 20; Davis v. Hartel (1914) 56 Pa. Super. Ct. 557. Vermont.-Cooney v. Hayes (1868) 40 Vt. 478, 94 Am. Dec. 425; Rosenberg v. Taft (1920) 94 Vt. 458, 111 Atl, 583. Virginia. Wainwright v. Bankers' |