you going too fast to jump off your wheel?" | stated. I think there can be but one answer, he answered, "Yes, in going that distance. Of course the effect of releasing the brake is naturally to accelerate the speed of the machine. I know that to be so. This was quite a sharp decline there, just a trifle less than 8 inches in 10 feet.' According to the plaintiff he approached the crossing upon his bicycle at a rate of speed of from 8 to 10 miles an hour, and, when within 16 to 18 feet of the level, when he could see but in one direction over the defendant's road, he released a control of his wheel, which would have enabled him to stop within a space of 2 feet. Naturally and admittedly the speed of his progress was increased, so that, when he came near to the tracks, where the view either way was open, he was unable to stop. Indeed, such was his rate of speed that it carried his bicycle over a rail of the main track. What was the question of fact? It was whether the plaintiff acted as a prudent man should act when approaching such a place of danger, under the circumstances guilty of contributory negligence where, for some distance from the track, he had practically an unobstructed view of the same in both directions, although two unloaded hay wagons were in his line of vision to the west, but failed to look and listen after passing the point at which he could have seen trains coming from the west, until he reached a point so near the track on which a train from the west was approaching that he could not avoid colliding with it, and affirmed the judgment of the trial court on the ground that, under the circumstances, the contributory negligence of the plaintiff was a question of fact for the jury. that he was heedless of those ordinary precautions which were within his ability to take, and which should reasonably be expected of everyone in such a situation. There was no question for the jury to pass upon. As matter of law, the plaintiff was shown to have contributed to the accident through a failure to observe those ordinary rules which the common experience and common sense of men teach them their conduct should be governed by when approaching a railroad crossing. The flagman's absence from the crossing did not dispense with the necessity of vigilance on the plaintiff's part. The rule has long been settled that negligence on the part of the railroad company, in omitting to give warning of the approach of trains, by signals or by a flagman, does not excuse persons from exercising ordinary care and prudence on their part when crossing its tracks. Wilcox v. Rome, W. & O. R. Co. 39 N. Y. 358, 365, 100 Am. Dec. 440; McGrath v. New York C. & H. R. R. Co. 59 N. Y. 468, 472, 17 Am. Rep. negligence, and, affirming the judgment of the trial court, held that the question as to plaintiff's negligence was properly submitted to the jury as a question of fact. So, in Houston, B. & G. N. R. Co. v. Pollard, 28 Tex. Civ. App. 172, 66 S. W. 851,. a railway company which tore up a street pavement where it intersected with its road, and left stones lying at the place in a way dangerous to persons passing, and unmarked by a signal light, as required by city ordinance, was held liable for injuries received by a bicyclist who ran into such obstruction. An instruction in effect that a bicyclist crossing railroad tracks is not guilty of conBut in Sonn v. Erie R. Co. supra, contributory negligence when confronted by sidering the dangerous character of the erossing and the duty of travelers to look for approaching trains, the failure of a bicyclist to notice a gap in the bridging was considered not to be indisputably negligent, and the railroad company was held liable for the injuries complained of. And again, where it appeared that the plaintiff, while attempting a crossing within less than 3 feet of a freight car which projected over the sidewalk, was injured by that car being bumped against her by another which was "kicked" against it by an engine more than a block away; that, as she was approaching the crossing slowly, looking and listening, her view was so obstructed that she could not see the moving car which set in motion the one that struck her, but did see the engine about a square away, going from the crossing; that the moving car made no noise, and no warning of any kind was given of its approach,the court, in Cleveland, C. C. & St. L. R. Co. v. Penketh, 27 Ind. App. 210, 60 N. E. 1095, refused to say as a matter of law that the plaintiff's failure to stop and alight was sudden peril which causes him to act wildly and madly was held erroneous in Louisville & N. R. Co. v. Stewart, 128 Ala. 313, 29 So. 562, on the ground that, under such circumstances, contributory negligence is a question of fact for the jury. That defendant's watchman invited plaintiff to cross is a fact for the consideration of the jury in passing on the question of plaintiff's negligence. Ibid. An instruction to the jury that, "considering the ease of dismounting and the control of the rider over his instrument, a bicyclist must, under all ordinary circumstances, be treated as subject to the same rules as a pedestrian; he must stop, look, and listen before attempting to cross a railroad track."-is properly refused, as the term "ordinary circumstances" is calculated to mislead the jury, since it might be understood to include the giving of signals to cross tracks, which may, in the absence of apparent danger, absolve a traveler whether on foot or on a bicycle from the duty of stopping and listening. Ibid. W. W. A. Chase and Collin, JJ., concur. Cullen, Ch. J., and Willard Bartlett, J., concur on second ground stated in opinion. Hiscock, J., concurs in result. Vann, J., absent. 359; Cullen v. Delaware & H. Canal Co. | and that a new trial be ordered; with costs 113 N. Y. 667, 21 N. E. 716; Wallace v. to abide the event. Central Vermont R. Co. 138 N. Y. 302, 305, 33 N. E. 1069. It is a rule of reason, for it simply requires of travelers on the highway that they shall be attentive to their safety under circumstances which admonish them of the possibility of injury. They should be vigilant in the use of their faculties upon such an occasion, as well because of being out of their ordinary surroundings, and in a place of some danger, as in order 1 OKLAHOMA SUPREME COURT. to guard against the result of some neglect TYLER COMMERCIAL COLLEGE, Plff. in on the part of the corporate servants. The omission on the part of the railroad com. pany of some usual act, purposed to give warning to travelers on the highway, may tend to throw one off his guard, but it does not justify the nonobservance of ordinary care on his part. We have held, where gates are maintained at highway crossings, that, however their being open may be deemed to furnish an affirmative assurance of safety to the traveler, nevertheless it does not dispense with the necessity of vigilance on his part. Scaggs v. Delaware & H. Canal Co. 145 N. Y. 201, 207, 39 N. E. 716. I think that the defendant's motion for the dismissal of the complaint, on the ground of the plaintiff's contributory negligence, should have been granted, and the excep tion to its denial was well taken. At the close of the evidence, the trial court was requested by the defendant to charge the jurors that "it is the duty of the person riding a bicycle upon a highway, in approaching a railroad crossing, to keep the bicycle under complete control and be prepared to stop." This request was refused, and I think the ruling was grave error. There was as much propriety in that in-1 struction as though it had been requested with respect to the driving of a horse; and how can there be any doubt as to the need of control being as great in the one case as in the other? The rider of a bicycle should have it under full control, and especially when the circumstances are such as, within human probability, to make his control a reasonable assurance against danger, as well to himself as to others. A person driving a horse, or driving a bicycle, would in neither case be required to get down at a railroad track in order to look before crossing, for that would be requir ing extraordinary care, rarely exercised by the most prudent. But he must approach with ordinary care and with horse or wheel under such complete control as to permit of stopping within a reasonable time, if by so doing injury could be averted. I advise that the judgment be reversed, Err., 1. The owner of a building leased same to a corporation for a period of three years at a stipulated rental of $75 per month. The lessee, after the expiration of about one year, by parol agreement, assigned the lease. The assignee took possession of the demised premises, paid the purchase price of the lease, and performed the covenants thereof by paying for a time the monthly rentals tract; but before the expiration of the to the lessor, as provided in the lease conlease, plaintiff abandoned the premises and refused to pay the rents for the unexpired term. Held that the assignment of the lease was in violation of the statute of frauds, and void (§ 1089, Comp. Laws 1909), but that the acts of the assignee relieved it from the operation of the statute, and that the assignee was liable to the lessor for the full term of the lease. Same liability of assignee privity. 2. The assignee of a lease is liable to the lessor by reason of privity of estate for rents on the demised premises, so long as the privity of estate continues. Same effect. E RROR to the District Court for Logan County to review a judgment in plaintiff's favor in an action brought to recover a balance alleged to be due for rent. Af firmed. The facts are stated in the opinion. Messrs. Tibbetts & Green, for plaintiff in error: A lease or the assignment thereof creates an interest in real estate, and, if for a period of more than one year, must be in writing and signed by the party to be charged. Welsh v. Schuyler, 6 Daly, 412; Durand v. Curtis, 57 N. Y. 7; Polk v. Reynolds, 31 various parties as affected by a parol assignment, but only the question as to the applicability of the doctrine of part performance to such an assignment. Some cases which apparently rest upon other considerations are, however, incidentally referred to. The apparent conflict on the question under annotation, as indicated in the opinion in TYLER COMMERCIAL COLLEGE V. STAPLETON, is due mainly to the fact that in some jurisdictions the doctrine of part performance remains purely an equitable doctrine, and is available only in suits in equity, whereas, in other jurisdictions, where the distinction between actions at law and suits in equity has been abrogated, the doctrine, if otherwise applicable, is available either in a suit in equity or an action at law. In this connection, see note in 3 L.R.A. (N.S.) 793. The decision in TYLER COMMERCIAL COLLEGE V. STAPLETON, that the taking of possession of premises under a parol assignment, and the payment of rent during the period of occupancy, constitute such part performance as to take the assignment out of the statute of frauds and sustain an action by the lessor against the assignee for rent after the abandonment of the premises by the latter, but without an assignment by him, is sustained by Dewey v. Payne, 19 Neb. 540, 26 N. W. 248, presenting a substantially identical state of facts, and reaching the same conclusion. A parol assignment of a lease for a term of years, accompanied by actual possession, delivered and accepted according to the terms of the lease, followed by payment of rent to the lessor by the assignee and the acceptance thereof by the lessor, passes title to the assignee, so as to support an action in equity by the lessor agains the assignee for an accounting and other equitable relief. Webster v. Nichols, 104 Ill. 160. But see, infra, Chicago Attachment Co. v. Davis Mach. Co. as to actions at law. In Edwards v. Spalding, 20 Mont. 54, 49 Pac. 443, an action by the lessor against the assignee for rent after the latter had ceased to occupy the premises, it was contended by the defendant that the assignment was void because it was executed in the name of a firm, and not signed by the individual members thereof; but the court Md. 106; Chicago Attachment Co. v. Davis Sewing Mach. Co. 142 Ill. 171, 15 L.R.A. 754, 31 N. E. 438; Johnson v. Reading, 36 Mo. App. 306; Taylor, Land. & T. § 427; Browne, Stat. Fr. § 230. As between the lessor and the assignee of the lease, in the absence of express contract to the contrary, there exists only a privity of estate, binding the assignee to the payment of rent only during his occupancy of the premises. 1 McAdam, Land. & T. 3d ed. § 242; Jones, Land. & T. §§ 455, 456; Dolph v. White, 12 N. Y. 296; Frank v. New York, L. E. & W. R. Co. 122 N. Y. 197, 25 N. E. said that the defendant, having accepted the assignment of the lease in writing and agreed to pay the rent, and having taken possession of the premises under the assignment and paid the rent while in possession, had placed himself in a position where he could have enforced a specific performance of the contract to assign against the firm, and the firm could have enforced the same against him, and therefore the contract was taken out of the statute of frauds, and the defendant was not in a position to resist a recovery upon the contention that the contract was void under that statute. In Wolke v. Fleming, 103 Ind. 105, 53 Am. Rep. 495, 2 N. E. 325, an action by the lessor against the assignee, the objection that the parol assignment was within the statute of frauds because it was a contract not to be performed within one year was disposed of upon the ground that, while the doctrine of part performance does not apply to such a contract, yet the case was taken out of that provision of the statute by the fact that possession had been taken under the assignment, and therefore on one side there had been full performance. The court said that it was unnecessary to decide whether the doctrine of part performance is applicable to the assignment considered as a conveyance of an interest in real property, but intimated that it saw no reason why it should not be so applied. In Marks v. Chumos, 82 Kan. 562, 109 Pac. 397, the court declares in effect that if the lessee, with the knowledge and consent of the lessor, sells and assigns by parol his unexpired term, and the assignee receives the written lease, and enters into possession of the premises thereunder, and pays rent in accordance with the terms of the lease for months, the lease becomes a contract in writing between the landlord and the assignee for the unexpired term. This proposition, however, does not seem to rest on the doctrine of part performance, but rather upon the ground that the transaction between the lessor and the assignee. amounted to an adoption of the lease by the latter; and the court relied upon the case of Barhyte v. New Hampshire RealEstate Co. 66 Kan. 390, 71 Pac. 837, where the lease was for a year, and there was no question as to the statute of frauds; but 332; Holsman v. DeGray, 6 Abb. Pr. 79; | Michelssen, 76 Cal. 125, 18 Pac. 138; Dolph Hoagland v. Hall, 38 N. J. L. 350; Kim- v. White, 12 N. Y. 296; Frank v. New briel v. Montgomery, 28 Okla. 743, 115 Pac. 1013; Durand v. Curtis, 57 N. Y. 7; Welsh v. Schuyler, 6 Daly, 412; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Higgins v. Street, 19 Okla. 45, 13 L.R.A. (N.S.) 398, 92 Pac. 153. An assignee may terminate his liability for payment of rent by another assignment of the lease, even though assigned to a beggar, and for the express purpose of ridding himself of liability. 1 McAdam, Land. & T. 3d ed. § 242; Jones, Land. & T. §§ 455, 456; Wood, Land. & T. §§ 307, 339, 340, 349; Dengler v. it was held that by such a transaction as that embraced by the above proposition, the assignee made the lease his own and thereby became subject to a stipulation thereof waiving exemption laws. York, L. E. & W. R. Co. 122 N. Y. 197, 25 N. E. 332; Holsman v. De Gray, 6 Abb. Pr. 79; Reid v. John F. Wiessner Brewing Co. 88 Md. 234, 40 Atl. 877. Mr. C. G. Horner, for defendant in error: Having had the benefit of the lease, and having claimed the benefit of it, defendant will not now be permitted to repudiate it. He cannot enjoy the benefits and reject the burdens. Bigelow, Estoppel, 5th ed. 679, 684; Robinson v. Pebworth, 71 Ala. 240. When the Tyler company took over the tion at law, either by the lessor or the lessee, against the assignee. And that was the ground of the decision in Chicago Attachment Co. v. Davis Sewing Mach. Co. 142 III. 171, 15 L.R.A. 754, 31 N. E. 438, holding that possession by an assignee under parol assignment of a lease which has more than a year to run, and the lessor's So, the decision in Baker v. J. Maier & B. Brewery, 140 Cal. 530, 74 Pac. 22, an action by the lessor against the assignee for rent, that when the assignee went in-recognition of him and acceptance of the to possession under the lease and paid the monthly rental at the rate prescribed therein, he thereupon became a tenant under the lease, even if the assignment was void under the statute of frauds, seems to rest on the principle of assignment by operation of law and attornment, rather than on the doctrine of part performance. The decision in B. Rolf Tool Co. v. Champ Spring Co. 93 Mo. App. 530, 67 S. W. 967, that the defense of the statute of frauds was not available to the lessor in a suit against him by the assignee under a parol assignment, for equitable relief, was not on the ground of part performance, but upon the ground that the statute of frauds is not available to invalidate a contract by one not a party to it. And that seems to be the ground of the decision in Bliss v. Gardner, 2 Ill. App. 423, that a parol assignment of a lease having been executed, and the lessor having accepted the assignee as a tenant, the lessor could not avail himself of the statute of frauds for the purpose of obviating the effect of the assignment as a defense to an action of debt against the lessee for rent. And also of the decision in Wiley's Estate, 12 Phila. 152, that a second and parol assignment of a lease having been executed by the payment of the consideration and the delivery and retention of possession, and the lessor having recognized its validity, he could not, in an action for rent against the sureties of the assignor (the first assignee), deny its effect to put an end to the privity of the estate between himself and the assignor, which was essential to sustain his action for rent accruing after the second assignment. rent from him, are not sufficient to take the case out of the statute of frauds, so as to enable the lessor to maintain an action against the assignee for rent falling due after the latter had abandoned the premises. And that was also the ground of the decision in Nally v. Reading, 107 Mo. 350, 17 S. W. 978, affirming Johnson v. Reading, 36 Mo. App. 306, holding that the fact that the assignee under a parol lease for an unexpired term exceeding one year took possession of the land, and paid a portion of the rent to the original lessor, would not take the contract out of the statute of frauds, so as to sustain an action at law by the assignor against the assignee to recover rent accruing subsequent to the assignment, which the former had been obliged to pay to the lessor. That would also seem to account for the result reached in Tiefenbrun v. Tiefenbrun, 65 Mo. App. 253. holding that the assignee under a parol assignment of a freehold interest, although he had been put in possession thereunder, could not rely upon the assignment as a defense to an action for unlawful detainer by the assignor. The court, however, disposed of the point simply by holding that the assignment was within the statute of frauds, and did not discuss the question of part performance. The decision in Hunt v. Coe, 15 Iowa, 197, that part performance cannot be relied upon in an action at law to take a parol assignment of a lease out of the statute of frauds, was upon the ground that in an action at law-and the court said it was not called upon to determine what a court of equity would do under the circumstances-only the exceptions allowed by the statute itIn jurisdictions where the distinction be- self were available, and that the transfer tween actions at law and suits in equity of leasehold estates for years was not is still preserved, the doctrine of part per- within the provision of the statute to the formance is not available to sustain an ac-effect that the requirement of a written con property of the local company, the local | three years, beginning on January 1, 1904, company went out of business, and practically ceased to exist. Of course, technically, its corporate existence was not terminated, but de facto it had ceased to exist. Thomp. Corp. § 6547; Harrison v. Arkansas Valley R. Co. 4 McCrary, 268, 13 Fed. 522; Hibernia Ins. Co. v. St. Louis & N. O. Transp. Co. 4 McCrary, 438, 13 Fed. 516. There was an express agreement to pay the rent made directly with Mrs. Stapleton, and the circumstances were such that an agreement of this kind would be implied, even though without an express promise. Clark & M. Priv. Corp. § 335; Dewey v. Payne, 19 Neb. 540, 26 N. W. 248; Davis Provision Co. v. Fowler Bros. 20 App. Div. 628, 47 N. Y. Supp. 205. and expiring January 1, 1907; that the Capital City Business College took possession of said rooms under the lease, and retained them and paid the rents thereon until the month of October, 1904, at which time it sold, assigned, and delivered to defendant said lease contract and possession of said rooms. She further alleges that defendant assumed said lease contract, and agreed with the Capital City Business College, for a good and valuable consideration, to pay the rent thereunder to the plaintiff in the sum of $75 per month for the full, unexpired term of said contract. She alleges that defendant occupied said premises and paid the rents thereon until September 27, 1905, at which time it vacated the premises and thereafter refused to pay the rents. She alleges that after the Hayes, J., delivered the opinion of the premises had been vacated by defendant, court: Defendant in error, hereinafter called plaintiff, brought this action in the court below against plaintiff in error, hereinafter called defendant, to recover the balance due her as rents on a certain building located in the city of Guthrie. She alleges in her petition and amendments thereto that she leased to the Capital City Business College, a corporation, certain rooms in her building, in the city of Guthrie, for a period of tract "shall not apply where the purchase | money or any portion thereof has been received by the vendor, or when the vendee has taken and held possession thereof under and by virtue of the contract,"-as that provision related only to freehold estates. | and it had refused to pay further rents thereon, she took possession of the premises, and, after making certain repairs, was able to rerent the premises only at a reduced rent. She prays judgment for the amount of the rents at the rate of $75 per month, as stipulated in the contract, for the time the building stood vacant after the same was vacated by defendant, and for the difference in the rental provided for in the contract and the amount she was son that the question of part performance is not discussed, in which it would seem from the facts that there would have been an opportunity to raise that question. For example, in Durand v. Curtis, 57 N. Y. 7, where rent which accrued after the dissolution of a copartnership formed between the holder of the lease and the defendant was held not to have become a firm indebtedness within an agreement to assume such indebtedness, by virtue of a parol agree In Culver v. VanValkenburgh, 60 Or. 447, 119 Pac. 753, the court, speaking with reference to the oral transfer of a leasehold interest, said that, in order that one may be liable on the covenants as the assignee of the leasehold, there must be a legal assignment that, in consideration of putting the ment to him; that it is not sufficient that he be in possession. This is followed by a statement to the effect that the statute of frauds in relation to the transfer of an estate in real property includes an assignment of a leasehold interest in lands for a term of more than one year. The court, however, does not discuss the effect of part performance to take the case out of the statute of frauds. Cases, like Moskowitz v. Eastern Brewing Co. 117 N. Y. Supp. 1017, upon the question whether the presumption that one other than the lessee in possession of premises is there by virtue of a valid assignment may be overcome by proof that he entered under an assignment not in writing, are not in point, as they do not discuss the effect of possession as part performance which will take the assignment out of the statute of frauds. And there are other cases not included in this note, for the rea lease into the firm's business, the rent should be a firm indebtedness, since the balance of the term could be transferred only by writing, and the agreement to pay the rent could not be performed within a year, -there was no suggestion of the possibility of taking the case out of the statute of frauds upon the ground of part performance, although the firm was for a time in possession of the property, and it appeared that, at the time of the formation of the partnership, the defendant paid the holder of the lease one half of a month's rent, which the latter had paid in advance, and it would seem that upon such facts the question of part performance might have been raised. But see Wolke v. Fleming, 103 Ind. 105, 53 Am. Rep. 495, 2 N. E. 325, to the effect that that doctrine is not available as against the provision as to contracts not to be performed in a year. J. W. M. |