Respondent contends that: "There are two ways by which words not actionable in themselves may become so by being published of a person in respect to his office: (1) Where the act charged would be punished by indictment, which would not be so if done by a person not in office; (2) where a libel or slander tends to disgrace and disparage one in an office of profit or honor and deprive him of it, it not being necessary that the words should import a charge of crime." And that said article charges him with: "(a) Willful neglect in the discharge of the duties of his office as a public official; and approval of the neglect of duty of those under his supervision. (b) Incompetence and mismanagement in handling the affairs of his office. "(c) Malfeasance and corruption in office. "(d) Dishonesty, deceit, and deception." There can be no question of the soundness of the legal proposition stated, and it is clear that the article in question is libelous per se if respondent is correct in the construction which he has placed upon the words of such article. [1] Appellant urges that the complaint is insufficient in that it does not allege that the publication was unprivileged. There is no merit to this contention. It is alleged that the publication was malicious; if malicious, then, under the conceded facts of this case, it cannot be privileged, though, if there were no malice in fact, the publication, even though libelous per se, would be privileged. This question of privilege may affect the question of proof of malice when this case comes to trial, but cannot render the complaint insufficient, malice being alleged. Schull v. Hopkins, 26 S. D. 21, 127 N. W. 550, 29 L. R. A. (N. S.) 691, and cases therein cited. [2] In the complaint, plaintiff, by innuendoes, has set forth the meaning which he imputes to the several portions of said publication. The office of an innuendo is not to enlarge the meaning of the words published; and, if the words used are neither actionable in themselves nor actionable when explained by the extrinsic facts alleged, the innuendo cannot attribute to the words a meaning which they will not bear. 18 Am. & Eng. Ency. Law, 982. If a publication is not actionable per se, it cannot be made so by an innuendo. It is only when the published words are equivocal or ambiguous and admit of several meanings that it is proper, by innuendo, to attribute to them such fixed and definite meaning as the pleader thinks they ought to bear. 25 Cyc. 449. While we believe that respondent, by the innuendoes contained in his complaint, gave to the publication constructions entirely unsupported by the clear import of the words used, yet in part such innuendoes are clearly supported by the words used in the publication. and that such charges tended to hold plaintiff up to hatred, ridicule, and contempt. We think it clear that these excerpts are susceptible of a construction charging respondent with negligence in the performance of his official duties; and, if such excerpts may also be susceptible of an innocent construction, it was the province of the jury to construe such excerpts. Church v. New York Tribune Ass'n, 63 Misc. Rep. 578, 118 N. Y. Supp. 626. Respondent contends that excerpt "d" charges him with being incompetent to discharge the duties of his office. We are utterly unable to find in this excerpt anything that, by any fair construction, can be held libelous, except in so far as this excerpt, like "a," "b," and "c," may charge neglect in the discharge of official duties. [5] Respondent contends that excerpt "e" charges "malfeasance and corruption in office" in that "it charges him with seeking to force the public to pay a higher price for school books, so that the book depositaries might be benefited," and in that it further charges "that it was done knowingly." We think there is no support for respondent's contention. The publication did not charge that respondent knew that the law provides that books should be sold at 10 per cent. above cost. For all that appears in this excerpt, respondent might have acted in perfect good faith when "he insisted on using the list price which is 33% per cent. above cost." For an officer to be mistaken in his construction of a law comes far from corruption or malfeasance in office. If appellant had charged that respondent insisted on the 33 per cent. when he knew that the law provided for only 10 per cent. there would have been a charge of malfeasance in office. [6] Respondent contends that excerpts "f" and "g," while not containing a direct charge of crime or corruption, do "contain insinuations and veiled accusations, which, to the mind of the average reader, would convey the idea that respondent was guilty of a crime in conducting the affairs of his office." It is certainly true, as declared in Palmerlee v. Nottage, 119 Minn. 351, 138 N. W. 312, 42 L. R. A. (N. S.) 870, that: "A charge need not be made directly; indeed, the venom and sting of an accusation is usually more effective when made by insinuations. The floating calumny, which each reader may attach to any and every official act which his aroused suspicions may lay hold of, is capable of inflicting graver injury and injustice than a direct, specific charge, which may be squarely met and refuted, if untrue.' Respondent, in his complaint, by innuendo alleged that by these excerpts appellant intended to charge respondent with embezzlement. We do not think that the words used [3, 4] It is contended by respondent that are fairly susceptible of any such construcexcerpts "a," "b," and "c" charged plaintiff tion. Upon the other hand, one reading and his assistants with shirking the work in their office and with negligence therein; that such charges would have a natural tend these parts of the article published could draw but one of two conclusions: (1) That the writer intended to accuse respondent of to accuse him of malfeasance in office-as it certainly would be malfeasance in office for one to so keep his official records as to cover up errors therein. It would be the province of the jury to say what was the fair import of these excerpts. We are therefore of the opinion that the article published charged respondent with neglect of official duties, and either with being incompetent to properly perform such duties, or else with malfeasance in office in that he knowingly kept the books of the office in an improper manner. While such charges, even though false, might, when made from proper motives by one believing them to be true, be privileged and therefore not the basis of a cause of action for libel, yet, when published maliciously by one knowing their falsity or in reckless disregard of their truth or falsity, they, if libelous per se, are sufficient upon which to ask for damages without allegation or proof of special dam ages. [7] The question thus presenting itself is whether it is libelous per se to charge a public official with neglect of official duties, with incompetency in office, and with malfeasance in office. We think it is. While the extent of neglect, the degree of incompetency, or the gravity of the malfeasance charged may affect the amount of damage suffered by the injured party, yet the nature of the charge remains the same; it may vary in degree but not in kind. Libel is defined in our statutes (section 29, C. C.) as follows: "Libel is a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye. which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." It needs no argument to demonstrate that it would injure respondent in his occupation as a public officer and injure him in his candidacy for re-election to the office he held if the people of his county should be led to believe in the truth of any of these charges. It stands admitted that they were made maliciously and with knowledge of their falsity. That they were published for the purpose of influencing and in hopes that they would influence the voters of Minnehaha county is apparent even if such purpose had not been pleaded. The Supreme Court of California, in speaking of a statutory definition of libel almost word for word the same as that contained in section 29, C. C., supra, said: "This definition is very broad, and includes almost any language which upon its face has a either generally or with respect to his occupanatural tendency to injure a man's reputation tion." Schomberg v. Walker, 132 Cal. 227, 64 Pac. 291. And that court also said: "Language which is fairly included in such definition is libelous per se.' We think the law and the reason therefor well stated in Williams v. Davenport, 42 Minn. 393, 44 N. W. 311, 18 Am. St. Rep. 519: "Without entering into a discussion of the to harmonize, which have found a place in the many distinctions and refinements, impossible text-books, as well as in the utterances of some of our courts, upon the subject of slander and libel, it may safely be asserted that published prejudice or injury of any one in his office, prowords are actionable which directly tend to the fession, trade, or business. Starkie, Sland. § 117. The injury consists in falsely and malilation to his particular trade or vocation which, ciously charging another with any matter in reif true, would render him unworthy of employment. 2 Kent, Comm. (13th Ed.) 17." In further support of our views herein, we cite Knox v. Meehan, 64 Minn. 280, 66 N. W. 1149; Jarman v. Rea, 137 Cal. 339, 70 Pac. 216; Scougale v. Sweet, 124 Mich. 311, 82 N. W. 1061; Martin v. Paine, 69 Minn. 482, 72 N. W. 450; Church v. New York Tribune Ass'n, supra. The order appealed from is affirmed. WEBBER V. MINER, Circuit Judge. (Supreme Court of Michigan. Jan. 4, 1915.) 1. CORPORATIONS (§ 560*)-INSOLVENCY-RECEIVERS-SALE OF PROPERTY. leased the property to the Independent Power Company, which maintains power and electric light plants operated by water power at Linden and Holly, and has a transmission wire running from Linden to Holly through the village of Fenton. The plant of the Fenton Light & Power Company at Fenton has always been run by steam power, produced by the consumption of coal. Where the property of a quasi public corporation is in the hands of a receiver in mortgage foreclosure proceedings and it is made to appear to the court that it cannot be operated except at a loss, the court may order the corIt is claimed that, when the agreement was poration's assets and franchises sold without entered into, fraudulent and false repreredemption before the entry of a final decree. sentations were made by the stockholders of [Ed. Note. For other cases, see Corporations, the Fenton Light & Power Company to the Cent. Dig. 88 2253-2260, 2262; Dec. Dig. § 560.*] relator, and that said stockholders were in 2. CORPORATIONS (§ 560*)-INSOLVENCY-RE- part also bondholders, and that their actions CEIVERS MORTGAGE FORECLOSURE-SALE OF were collusive and fraudulent. PROPERTY-OFFER TO LEASE. Upon a hearing a receiver was appointed, and subsequently a supplemental bill was filed to foreclose the entire mortgage. The Where, pending a receiver's application for the sale of the franchises and assets of a quasi public corporation organized to operate a lighting plant in a village before final decree in mort-receiver thus appointed, finding that the gage foreclosure proceedings, another company operation of the plant under his management offered to lease the property and operate it with- resulted in a considerable loss instead of a out loss to the receiver pending a hearing and final decree, it was not a proper exercise of dis-profit, petitioned the court in the first incretion to order a sale provided the prospective stance for permission to sell the personal lessee would enter into a valid lease and give bond to perform the same. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2253-2260, 2262; Dec. Dig. § 560.*] Application on relation of George C. Webber for a writ of mandamus against Selden S. Miner, acting Genesee Circuit Judge, to restrain the carrying out of an order for the sale of the property of a quasi public corporation in the hands of a receiver, without redemption. Granted conditionally. Argued before BROOKE, C. J., and McALVAY, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ. Fred H. Aldrich, of Detroit, and Sylvester Pheney, of Holly, for relator. Farley & Selby, of Flint, for respondent. KUHN, J. The Detroit Trust Company, the trustee in a mortgage given by the Fenton Light & Power Company, a public service lighting company operating a lighting plant in the village of Fenton, Mich., filed its bill for the purpose of protecting its security and restraining the commission of waste, and to foreclose for the amount due on certain mortgage bonds remaining unpaid, and interest thereon, and for the appointment of a receiver. On August 1, 1912, parties claiming to own all of the capital stock of the company had entered into a contract for the sale of the capital stock and property of the company to the relator, who subsequently assigned his interest therein to the Detroit Construction Company, Limited. Under this assignment, if the Detroit Construction Company, Limited, should fail to perform the agreements assigned to it, the relator, George C. Webber, would have the right to perform the agreements and take the property. The Detroit Construction Company, Limited, thereafter property without the real estate. Subsequently an amended petition was filed praying for the right to sell all the property of the corporation. An order was thereupon made by the court that the property of the Fenton Light & Power Company be sold without redemption on the 20th day of July, 1914, and the funds paid to the register of the court, to be held by him until the final order and decree providing for the distribution thereof. Subsequently the relator herein made a motion to set aside this order, which motion being denied, the relator now seeks relief in this court by. mandamus to compel respondent to set aside the order providing for the sale of the property. The first question which is thus presented to us for determination is whether the circuit judge has the power to order the sale without redemption of all the property of a quasi public corporation before final decree when such property is in the hands of a receiver appointed by him. [1] There can be no question that, when property is in the hands of a receiver and it is made to appear to the court that it cannot be conducted except at a loss, it is clearly within the power of the court to stop the loss by ordering the assets of the business to be sold. 34 Cyc. 286, 310. It also seems to be the established rule that in the case of a quasi public corporation, if a proper showing is made, such a sale may be ordered without the right of redemption. The rule is stated in 27 Cyc. 1800, as follows: "Where the right is given to redeem from judicial sales in general or sales on execution, the statute applied as well to sales made in the enforcement of foreclosure decrees as to those made under ordinary judgments. It has been held that a law providing the right of redemption from sales of real estate does not cover the case of a sale of the entire property of a quasi public corporation, such as a railroad or water company, including its real and personal prop •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes erty and franchises; but such a sale may be made as an entirety and without redemption." The reason for this rule is thus stated in the case of Hammock v. Farmers' Loan & Trust Co., 105 U. S. 77, 26 L. Ed. 1111, where in a final decree all the property of a railroad company, an Illinois corporation, was ordered sold without redemption: ** * "The question is therefore presented, for the first time in this court, whether the statutory provisions giving the right to redeem, as well lands or tenements sold under execution, as mortgaged lands sold under decrees of courts of equity, has any application to the real estate of a railroad corporation which, with its franchises and personal property, is mortgaged as an entirety, to secure the payment of money borrowed for railroad purposes. Undoubtedly in all such cases, the chief value of the real estate comes from the right or franchise to hold and use it, in connection with the personal property of the corporation, for railroad purposes. In other words, for to that result the argument would lead: The court, in decreeing the sale of the mortgaged property and franchises of a railroad corporation, has no discretion, if the corporation or its judgment creditors so demand, except to order the sale of the real estate separately, in parcels when susceptible of division, and subject to redemption, leaving the franchises and personal property to be sold absolutely and without redemption. Thus one person might become the purchaser of the real estate, another of the franchise, and still others of the personal property. If the railroad company should redeem the real estate, it could not employ it to any valuable end; for its franchise, to be a corporation and to use its real es tate for railroad purposes, will have been sold to another, and there is no right under the statute to redeem the franchise, it not being real estate, but, rather, a power or privilege, partaking more or less of sovereignty, and which may not be exercised without a special grant. * * Consequences equally injurious would flow even from the sale, as an entirety, of the real and personal property and franchises of the corporation, if the right was reserved to the company, or its creditors, to redeem the realty. Individuals or associations desiring railroad property would not purchase when they could not know, until the expiration of 15 months from the confirmation of the sale, whether they were to have all for which they might bid. During that period of uncertainty, the property would necessarily depreciate in value for the want of repairs and betterments essential to its preservation. A construction of the statute which leads to such results ought not be adopted, if it can be avoided. And we think it can be, without contravening the spirit of the statute or the public policy which suggested its enactment." * So in the instant case, the business of this company being to furnish electricity for the village of Fenton and its citizens, the plant itself would have comparatively little value without its franchise, and, for the reasons stated in the opinion cited, it was within the power of the court in a proper case to order all the property sold as an entirety and without redemption. See, also, P. & S. R. R. Co. v. Thompson, 103 Ill. 187; Farmers' Loan & Trust Co. v. Iowa Water Co. (C. C.) 78 Fed. 881; Columbia Finance & Trust Co. v. Ky. Un. Ry. Co., 60 Fed. 794, 9 C. C. A. 264; Pac. N. W. Packing Co. v. Allen, 116 Fed. 312, 54 C. C. A. 648; McKenzie v. Water Co., 6 N. D. 361, 71 N. W. 608, 614. [2] At the hearing of the motion for leave to sell said property, the following offer of the Independent Power Company to lease the property and operate it without loss to the receiver, pending a hearing and final decree, was called to the attention of the court: "To F. Alexander Baird, Receiver of Fenton Light & Power Company, Fenton, Michigan: The undersigned hereby offer to lease from you all of the property of the Fenton Light & Power Company, located in the village of Fenton, Genesee county, Michigan, from the date of your acceptance of this offer until the termination of the cause wherein you were appointed a receiver, or until such time as such lease shall be terminated by order of the court, and will pay to you for such lease, on the 15th day of each and every month, a sum which shall be suffibonds of the said Fenton Light & Power Comcient to pay the interest on all outstanding pany, to wit, the sum of twenty thousand ($20,000) dollars, and that it will pay to you, as such receiver, further sums sufficient to pay all taxes that shall be levied against the said property during the continuance of the said lease and a further sum sufficient to pay all premiums of insurance upon the said property which you may procure during the continuance of said tion of the period of said lease turn over to you lease, and the undersigned will at the terminacondition as the same shall be in when received or your successors the said plant in as good a by the undersigned, natural wear and use, and damage by the elements only, excepted. pendent Power Company, by Fred H. Aldrich, President. By Geo. W. Eyster, Secretary." Inde It being within the power of the court to make the order of sale, the only other question which presents itself is whether, considering the facts in this case, the court acted properly in ordering the sale as it did. While We hesitate to interfere with the discretion which the court exercised in the instant case in ordering the sale, nevertheless, in view of the fact that if the sale is made it will be impossible on the final decree to put the parties back in the position which they occupied at the time the proceedings were begun, and having in mind the policy in this state not to divest the mortgagor of his property unless it clearly appears that there is danger of ultimate loss to the bondholders (see Wagar v. Stone, 36 Mich. 364; Hazeltine v. Granger, 44 Mich. 503, 7 N. W. 74; Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392, 61 N. W. 668; Dawson v. Peter, 119 Mich. 274, 77 N. W. 997; Union Trust Co. v. Charlotte General Electric Co., 152 Mich. 568, 116 N. W. 379), in our opinion no sale should be ordered if the court is satisfied that the Independent Power Company is in a position to carry out the offer made as above set forth. If this offer should be accepted and a sufficient guaranty given that it will be carried out, no further financial loss would then result from the management of the plant by the receiver, and the rights of the parties could be determined before a sale is ordered. We are therefore of the opinion that if the Independent Power Company within ten days tenders the receiver a lease incorporating the terms of the offer above set forth, together with a bond conditioned that it will carry cretion. out its terms, in such sum and with such | trial in circuit court, was not an abuse of dissurety or sureties as may be approved by the trial judge, then the order providing for the sale should be set aside as prayed for; but, in case no such lease is tendered and no bond given within the time mentioned, then the writ will be denied. BAMLET REALTY CO. v. DOFF. (No. 8.) (Supreme Court of Michigan. Jan. 4, 1915.) 1. APPEAL AND ERROR (§ 1053*)-HARMLESS ERROR-ADMISSION OF EVIDENCE-CURE BY INSTRUCTION. The improper admission of evidence is cured where the court charged that the evidence should be disregarded, and that the issue raised was out of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4178-4184; Dec. Dig. 1053.*] 2. LANDLORD AND Tenant (§ 172*)-EVICTION -CONSTRUCTIVE EVICTION. Where a landlord deprives a tenant of the beneficial use of the demised premises, there is an eviction, though no actual physical expulsion from the premises. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 695-703; Dec. Dig. 172.*] 3. LANDLORD AND TENANT (§ 233*)—ACTIONS FOR RENT-JURY QUESTION. In an action for rent claimed by a landlord who asserted that the tenant wrongfully abandoned the premises, held that the refusal to direct a verdict for plaintiff was proper. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 49, 940-944; Dec. Dig. § 233.*] 4. LANDLORD AND TENANT (§ 233*)—ACTIONS FOR RENT-INSTRUCTIONS-SUFFICIENCY. In an action for rent instructions on the questions of constructive eviction and implied obligations held sufficient. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 49, 940–944; Dec. Dig. § 233.*] 5. LANDLORD AND TENANT (§§ 194, 233*)—AcTIONS FOR RENT-JURY QUESTION. Where a landlord informed a tenant that he might leave if he desired, the tenant must take advantage of the permission within a reasonable time; the question what is a reasonable time being for the jury. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 49, 788, 789, 940-944; Dec. Dig. §§ 194, 233.*] 6. TRIAL (§ 260*)—INSTRUCTIONS-REFUSAL. The refusal of request covered by the charge given is not error. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.**] Error to Circuit Court, Wayne County; Henry A. Mandell, Judge. Action by the Bamlet Realty Company against Louis Doff, begun in justice court and appealed to the circuit court. There was a judgment in the circuit court for defendant, and plaintiff brings error. Affirmed. STONE, J. This case originated in justice's court, where plaintiff declared on all of the common counts in assumpsit, and especially for use and occupation, and upon a written lease, filing a bill of particulars in which it claimed rent due under said written lease, dated February 10, 1910, for premises known as Nos. 601 and 602, Bamlet building, as follows: Rent for month of October, 1910. Rent from November 1, 1910, to November 15, 1910.. Rent of small room March 1, 1910, to October 1, 1910, 7 months at $25 per month Damages to premises.... $100 50 175 55 The plea was the general issue, with notice of eviction and surrender. The written lease in evidence was made by plaintiff, as party of the first part, and the defendant, as party of the second part, for a term of four years and six months from and after March 1, 1910, upon the terms and conditions mentioned, to be occupied for a ladies' tailoring establishment, and to be used for no other purpose without the written consent of the party of the first part. By the terms of the written lease the rent of $100 per month was to be paid as follows: $100 on the signing of the lease, and $100 on April 1, 1910, and $100 on the first day of each and every month thereafter during the life of the lease, being monthly in advance. The following additional agreement was made, bearing date February 9, 1910: "Whereas, Bamlet Realty Company is about to make alterations on the sixth floor of the Bamlet building to accommodate Louis Doff, under his lease, and said alterations were to be completed by March 1, 1910, it is agreed that the rent due under said lease shall abate pro rata during such time after March 1, 1910, as the Bamlet Realty Company is engaged in completing such alterations. This agreement attached clear-Louis Doff, becomes a part of the same. to the lease of the Bamlet Realty Company and [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 7. NEW TRIAL (§ 72*)-RIGHT TO. Trial, A new trial is properly denied unless ly against the weight of the evidence. [Ed. Note. For other cases, see New Cent. Dig. §§ 146-148; Dec. Dig. § 72.*] 8. JUSTICES OF THE PEACE (§ 174*)-APPEALAMENDMENT. Where the action originated in justice court denial of leave to amend the bill of particulars to include omitted items, sought on the second Elec tric wiring to be run for motor and electric lights to be put in where designated by party of the second part." Signed by the parties. Upon the trial of the case in the circuit court, as plaintiff's counsel was making his opening statement, wherein he claimed $60 for commission paid a broker in re-renting |